SOME OF THE MAJOR FEDERAL EMPLOYMENT DISCRIMINATION LAWS

1964 Civil Rights Act - Title VII Enacted to improve the economic and social conditions of women and minorities.

Title VII is the broadest of the laws dealing with discrimination in many aspects of the employment relationship and prohibits discrimination against employees or job applicants on the basis of:

RaceColor

Religion

National OriginSex

Title VII prohibits any practices or procedures, which limits or adversely affects employment opportunities on the basis of the protected classes, including:

advertising recruitment referrals

testing hiring

assignments transfers promotions

training benefits

disciplinary actions terminations compensation

layoffs recalls apprenticeships

and all other terms, conditions and privileges of employment . Title VII covers employers with 15 or more employees.

Title VII also prohibits any reprisals or adverse action against an individual or group of individuals because they have opposed discriminatory practices, participated or assisted, in any way, in a charge investigation or proceeding brought under its provisions.

Retaliation

EXECUTIVE ORDERS

Orders issued by the President to regulate employers who do business with federal government agencies.

A number of executive orders have been issued that prohibit employers, holding federal government contracts, from discriminating against employees and applicants on the basis of:

Race

Religion

Sex

Color

National origin

Age

Executive Order 11246Under E.O. 11246, government contractors and subcontractors, who do over $10,000 in government business in one year, are required to refrain from discriminating in employment decisions such as:

Recruitment, Advertising, Layoffs, Terminations,

Compensation, Training, Demotions, etc..

And to engage in affirmative steps to ensure that applicants and employees receive equal employment opportunity regardless of race, color, religion, national origin, sex, or age.

In addition, each government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop a written affirmative action plan for each of its establishments

AFFIRMATIVE ACTION

Good faith efforts by employers to address past and/or present discrimination through a variety of specific, results-oriented procedures

Actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.

Not preferential treatment. Should not unnecessarily trammel the rights of the

non-minorities

Affirmative action helps an employer identify problem areas, set goals and take positive steps to guarantee equal employment opportunities for people in a protected class.

The focus is placed on hiring, promoting, and training protected-class members where they are underrepresented in an organization in relation to their availability in the labor markets from which recruiting occurs.

In addition to being required by E.O. 11246, affirmative action can also be initiated :

• voluntarily

• as a result of conciliation or litigation; or

• under other federal, state, or local laws.

Utilizes GOALS not QUOTAS

Civil Rights Act of 1991 (amends Title VII)

Places a heavier burden on the employer to defend itself against charges of intentional discrimination.

Provides that an employment practice that adversely impacts a protected class is unlawful if the employer cannot demonstrate that the challenged practice is:

(1) job related for the position in question, and

(2) consistent with a business necessity.

Allows compensatory and punitive damage awards in cases of intentional discrimination

Also allows jury trials to determine the liability for and the amount of compensatory and punitive damages, subject to established caps.

The Equal Pay Act of 1963

The Equal Pay Act (EPA) was passed as a major amendment to the Fair Labor Standards Act , prohibiting discrimination on the basis of sex in the payment of compensation, including benefits.

An employer cannot discriminate between employees on the basis of sex by paying different wage scales for equal work, on jobs requiring:

equal skill,

effort,

responsibility, and

performed under similar working conditions

• The EPA applies to both men and women.

• Job titles cannot be used to disguise discrimination in pay.

For example, if a male “janitor” and a female “cleaning woman” are performing substantially “equal” work, their pay must be comparable.

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against anyone age 40 and over.

The ADEA makes it illegal for employers to discriminate in:

terms,

conditions, or

privileges of employment and compensation because of an individual’s age.

1967

The Pregnancy Discrimination Act of 1978

The basic principle of the Pregnancy Discrimination Act (PDA) is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.

Employers have to treat maternity leave and leave for other pregnancy-related conditions the same as other personal or medical leaves.

A woman may not be refused a job or promotion merely because of pregnancy or related conditions.

Vietnam Era Veterans Readjustment

Assistance Act

It prohibits employment discrimination and requires employers with federal contracts or subcontracts of $25,000 or more to provide equal opportunity and affirmative action.

• veterans who served on active duty for 180 days or more during a war or in a campaign or expedition for which a campaign badge has been authorized.

• qualified special disabled veterans; and

• Vietnam-era veterans;

1972 & 1974

Protects:

Uniformed Services Employment & Reemployment Rights Act of 1994

The USERRA prohibits employment discrimination because of an employee’s or applicant’s past, current, or future military obligations.

The law seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service.

It requires employers to reinstate employees, upon honorable completion of their military duty, to their former jobs.

Enforced by the VETS & OSC

Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act was passed to control unauthorized immigration to the United States and to deal with problems arising from the continued flow of immigrants.

The IRCA prohibits discrimination against any individual with respect to hiring, recruitment, or the discharging of the individual from employment because of national origin or citizenship status.

Individuals in this country illegally are not protected.

The Act also forbids employers to knowingly hire or recruit illegal immigrants (immigrants who do not possess lawful work authorization) .

Enforced by the OSC

Rehabilitation Act of 1973

The Rehabilitation Act prohibits employment discrimination against qualified individuals with disabilities.

The Act applies to federal government contractors and sub-contractors whose contracts are in excess of $10,000, and programs that receive federal funds.

An employee defined to be covered under the Act is the same as one covered under the Americans with Disabilities Act.

The person must be qualified for the job in order to be protected from job discrimination.

An individual must meet the following criteria to be considered a person with a disability:

Has a physical or mental impairment that substantially limits one or more major life activities;

Has a record of such impairment ; or

Is regarded as having such an impairment.

An individual only has to meet one of the three criteria.

Genetic Information Nondiscrimination Act of 2008

The GINA prohibits genetic information discrimination in employment.

Under Title II of GINA, it is illegal to discriminate against employees because of genetic information. Title II prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II and strictly limits the disclosure of genetic information.

The Americans with Disabilities Act of 1990

Extends the Coverage of the Rehabilitation Act

Expanded the legal responsibilities, of an employer, as defined by the Rehabilitation Act and made it easier for people with disabilities to:

• gain and hold employment,

• have easier access to public places,

• travel on public transportation,

• use public telecommunication services, and

• seek redress when the law is violated.

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As amended by the ADA Amendments Act of 2008

An individual is covered under the ADA if he/she:

has a physical or mental impairment that substantially limits one or more major life activities;

has a record of such an impairment; or

Is regarded as having such an impairment.

An individual only has to meet one of the three criteria.

p. 43

The ADA Amendments Act of 2008 (ADAAA) effective Jan 1 2009

Retains the ADA’s basic definition of a “disability” but:

• revises the term “substantially limits”

• expands the definition of “major life activities”

• states that mitigating measures other than “ordinary eyeglasses” shall not be considered in assessing whether a person has a disability

• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major activity when active

• states that an employee or applicant is “regarded as” if subject to an action prohibited by the ADA based on an impairment that is not transitory and minor

• clarifies that individuals “regarded as” are not entitled to a reasonable accommodation

Implications: employers are likely going to face more instances in which they need to provide accommodations to employees who might not have been considered disabled in the past, but who are considered disabled under the new law

The ADA protects those individuals who are disabled and qualified to perform the essential functions of the job with or without reasonable accommodation.

The individual must satisfy the position requirements:

•Skills, experience, education, licenses

•Physical and mental requirements

•Meet performance standards

An organization does not have to give preference, hire, or retain a disabled individual, if the individual is not qualified to perform the job.

It does not interfere with an employer’s right to hire the best qualified applicant.

Reasonable Accommodation

A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

• the essential functions of the job;

• qualifications of the person to perform the essential functions;

• determination whether a reasonable accommodation can be made for the qualified individual.

When Making a Reasonable Accommodation Consider:

An accommodation is not required if it imposes undue hardship.

Undue hardship means that an accommodation would be unduly

costly

extensive

substantial

disruptive

or would fundamentally alter the nature or operation of the business

If the need for accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability if the applicant requests reasonable accommodation for the hiring or working process.

Hiring People with Disabilities

Prior to an employment offer the ADA prohibits all disability-related inquiries and medical examinations even if they are job-related. Disability related questions are:

•Questions that are likely to elicit information about a disability.

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Disability related questions:

•Can be asked after a conditional job offer is made to a candidate, but before s/he starts work, as long as it is done for all employees entering into the same area.

•After employment begins, an employer may make disability-related inquiries and require medical exams only if job-related.

Employers may ask about an applicant’s ability to perform specific job functions & non-medical qualifications.

When an employer could reasonably believe that an applicant will need a reasonable accommodation to perform the functions of a job, the employer may ask:

• whether the applicant needs a reasonable accommodation;

• what type of accommodation is needed.

An employer may ask these questions if they believe the applicant needs a reasonable accommodation because the applicant:

• has an obvious disability;

• has voluntarily disclosed a hidden disability; or

• has voluntarily disclosed the need for an accommodation.

Employers may not conduct medical exams as a part of the application process.

Unlawful Harassment

Harassment That Results In A Tangible Action (Quid Pro Quo)

• Usually inflicts direct economic harm, because tangible job benefits are granted or denied based on the submission to or rejection of the unwelcome conduct

• Only an individual with managerial or supervisory authority can engage in harassment that results in a tangible employment action, since it requires the harasser to have the authority to grant or withhold job benefits

An employer is liable for the actions of a supervisor who engages in this type of harassment.

Hostile Environment

Affirmative Defense

• A work environment in which the employee feels threatened or or abused.

Can consists of unwelcome verbal or physical conduct

Has the effect of unreasonably interfering with the work performance or psychological well-being of a reasonable person.

An employer is also liable for hostile environment harassment by a supervisor even if it did not know unless the employer can prove it exercised reasonable care to prevent harm.

Our Changing Workforce

How has the workforce changed over the past 20-30 years?

Managers who are culturally savvy and resilient will be the survivors

EEO + AA = DIVERSITY

Understanding Diversity is understanding how to be responsive to a wide range of people

unlike oneself

The Impact of Stereotyping & Prejudice

When we Stereotype we: Over simplify and over

generalize groups or types of people

Ignore individual differences

Provides “role-expectations”

Inhibit development of authentic relationships among diverse people

When we are Prejudiced we:

Make premature judgments towards a person or group of people

Hold views that make us:– Unreasonable– Unjust– Intolerant