Making sure you do certain things

Regardless of how disciplined you are in your company about following equal employment opportunity (EEO) principles, there are some important steps you must or should take in this area:

• Post all mandatory federal, state, and/or local EEO-related posters.

  The online tools include a poster from the EEOC entitled Equal Employment Opportunity Is the Law. It describes the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, and genetic information. Every employer covered by the nondiscrimination and EEO laws is required to post this notice on its premises. The notice must be posted prominently, where employees and applicants for employment can readily see it. When businesses are exclusively remote, employers may use electronic means to post the notice as a substitute to the hard copy. If an employer has some employees working on-site and other employees working remotely, the employer must post the hard copy notice in the workplace and is encouraged to post it electronically for remote employees. In this case, employers must inform employees how to access the notice electronically.

• Depending on the size of your company (and its affiliation with or ownership by another company with enough employees to meet the 100-employee threshold) and type of organization, or whether you qualify as a federal contractor not exempt from the requirement, you may be required to prepare and file with the EEOC an annual report (known as the Employer Information Report, or EEO-1). This report sets forth certain demographic data related to your workforce, broken out into specific job categories.
• Retain copies of personnel and employment documents (job applications, payroll records, records related to discharges, and so on), including those that may conceivably become relevant if your company is involved in a discrimination suit. The recommended minimum period for maintaining these records is three years, though particular laws may impose their own retention periods for such documents. Certain records, such as payroll records, should be kept for longer (even for seven to ten years or longer) to enable your organization to defend against claims of discriminatory pay practices originating years earlier. Modern-day technology may make electronic storage of such records much less burdensome than in years past. Also, keep on file records of hiring practices, identifying total hires within a particular job classification and the percentage of minority and female applicants hired.

Hopefully, it’ll never happen, but in the event that an employee or a group of employees, an applicant or a group of applicants, or an administrative agency like the EEOC decides to file a discrimination complaint against your company, you should at least have a basic idea of what to expect.

As a preliminary matter, an individual may not file a lawsuit in court claiming discrimination under certain federal laws unless they’ve first filed an administrative charge with the EEOC and, in most situations, received from the EEOC a notice expressly affording them the right to proceed in court. This is true for most claims of discrimination under federal law (for example, race, sex, national origin), though not for claims under the Equal Pay Act (see “The Equal Pay Act of 1963,” later in this chapter), which may be asserted in court in the first instance. Such charges must typically be filed within 300 days of the alleged discriminatory conduct; charges alleging violations of the Age Discrimination in Employment Act must be filed within 180 days of the alleged conduct unless a state law provides a longer time frame.

Understanding what happens after the EEOC receives a claim

According to the EEOC, employees filed more than 60,000 charges of discrimination with the EEOC in fiscal year 2021. Though EEOC research indicates that the vast majority of these cases result in no benefit to the individual filing the charge, you need to understand the steps involved in case you need to interact with the EEOC. What follows is a rough description of the sequence of events that typically takes place after a claim is registered with the EEOC.

1. The EEOC receives the charges.

   The EEOC will, in nearly every case, accept a charge for filing. It will not do so when, for example, the EEOC simply doesn’t have jurisdiction.

2. The EEOC notifies the respondent (the employer) of the charges.

   The EEOC promptly notifies you that a charge has been filed and provides a copy of the charge. The EEOC generally requests information about your organization and about the allegations in the charge, including a statement of the company’s position in response. That notice may include an invitation to participate in an early mediation/conciliation to try to resolve the charge immediately, before a full investigation is undertaken.

   If you choose not to participate in an early mediation/conciliation, skip to Step 4.

3. The parties may try to resolve the charge early in a conciliation/mediation facilitated by the EEOC.

   If you choose to participate in early mediation/conciliation, then generally someone from your company (probably you) will meet with the person who filed the charge and an EEOC staff member. The charging party gets a chance to tell their side of the story — that is, why the person feels that they are the victim of discrimination. Your company’s representative then gives the company’s side of the story — why, in your view, your company acted based solely on legitimate business reasons and did not unlawfully discriminate. The EEOC staff member will likely try their best to resolve the issue and accomplish a satisfactory settlement of the charge. (Note that the resolution may involve, for example, giving a dismissed employee another chance or additional severance pay.)

4. If the parties do not resolve the charge early, the investigation begins.

   If Step 3 is unsuccessful (or you choose not to participate), the EEOC requests that you provide the information and the position statement requested in Step 2. The EEOC may follow up this step with requests for more information, which can include telephone or in-person interviews of witnesses, a review of documents, and/or a visit to your facility.

5. The EEOC makes a determination.

   Generally, on the basis of the allegations in the charge, the parties’ other written submissions, and its investigation, the EEOC will issue a finding on the merits of the charge and notify both parties of its finding — either of “reasonable cause” to believe that your company unlawfully discriminated against the individual or “no reasonable cause” to believe that your company unlawfully discriminated.

   In the event of a “reasonable cause” finding, the EEOC will once again solicit you to participate in a conciliation process aimed at resolving the charge (as in Steps 2 and 3). If the conciliation process fails (or you choose not to participate), the EEOC is authorized to enforce violations of federal antidiscrimination statutes by filing a lawsuit in federal court itself. If the agency elects not to litigate, it will issue to the charging party a Notice of Right to Sue, triggering the charging party’s right to bring a lawsuit on the discrimination claims within 90 days.

   If the EEOC issues a “no reasonable cause” finding, the agency will issue to the charging party a letter dismissing the charge and describing information regarding the charging party’s right to pursue the claim in federal court within 90 days.

In the event that the complaint leads to EEOC action, you may find yourself with a difficult choice: You have to either go along with EEOC proposals or gird yourself for a legal fight that may take years and cost your company thousands (or more) in court costs, damages, and, possibly, negative publicity.

If the EEOC doesn’t take the case, the individual claimant can proceed on their own, and you may find yourself in litigation.

When a right-to-sue notice is required, the individual can — and often does, when already represented by an attorney — short-circuit the administrative process by requesting an immediate right-to-sue notice, even before the EEOC has concluded its investigation. The EEOC is obligated to furnish the notice only if more than 180 days have passed since the charge was filed, but it may furnish the notice earlier. Similarly, charging parties alleging violations of the Age Discrimination in Employment Act may file a lawsuit without waiting for a right-to-sue notice, as long as at least 60 days have elapsed since the charge was filed.

Importantly, separate and apart from the federal EEOC are state equal employment opportunity agencies that are charged with very similar authority and responsibility for enforcing state antidiscrimination laws. Employees or former employees may file charges of discrimination with these agencies, just as they may with the EEOC offices, and such state agencies may investigate and act on such charges in accordance with their statutory powers — again, in a manner often quite similar to the EEOC. In fact, many states have “work-share” arrangements with the EEOC, where a charge may be deemed dually filed at both the EEOC and state agency level, but one agency agrees to lead the investigation, the results of which are accepted by the other agency. Employers must be careful to respond to state agency charges just as they would to an EEOC charge. You should consult with a knowledgeable and experienced attorney if your business becomes the subject of these investigations.

The Discrimination Fact Sheets included at www.dummies.com/go/hrkitfordummies detail discrimination guidelines.

ADEA: The Age Discrimination in Employment Act of 1967

What the legislation does: Prohibits discrimination against applicants for employment and employees who are age 40 or older. Also prohibits retaliation against individuals who oppose unlawful employment practices based on age or who participate in proceedings or hearings under the ADEA. This law was amended in 1990 by the Older Workers Benefit Protection Act of 1990 (see the next section).

Who the legislation applies to: Almost any private-sector employer with 20 or more employees who worked 20 or more weeks in the current or preceding calendar year. Includes labor unions (25 or more members), employment agencies, and state and local governments.

OWBA: Older Workers Benefit Protection Act (1990)

What the legislation does: Prohibits age-based discrimination in early retirement and other benefit plans of employees who are age 40 or older and establishes a statutory regime for assessing the effect of waivers of claims under the Age Discrimination in Employment Act, separate and apart from contract law.

Who the legislation applies to: All individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or organized groups of persons engaged in an industry affecting commerce that have 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year.

Additional details: One provision of this law requires that employers give an individual employee at least 21 days to consider a release or waiver of claims presented by the employer (that is, a company’s offer that includes a promise not to sue the company for age discrimination). This time period increases to a 45-day mandatory consideration period for employees terminated as part of an employment termination program. In either situation, this law also requires that employees be given seven days after signing the release/waiver to change their minds and revoke their agreement.

ADA: Americans with Disabilities Act of 1990, amended in 2008

What the legislation does: Among other things, ensures that people with physical or mental disabilities have access to public places and public services. Also requires employers to provide reasonable accommodation for applicants and employees with disabilities and prohibits employment discrimination on the basis of disability.

Who the legislation applies to: Almost any private-sector employer that has employed 15 or more employees for 20 or more weeks in the current or preceding calendar year, as well as state and local governments, employment agencies, and labor unions.

Additional details: Employers in recent years have taken major steps to accommodate otherwise qualified disabled employees by outfitting the workplace with certain features (for example, wheelchair ramps) specially designed for disabled people or modifying schedules or training programs with an eye toward the special needs of disabled people. The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 amended the ADA to greatly increase the coverage of the statute, including by determining disability without regard to mitigating measures (such as eyeglasses and medication) and counting impairments that are in remission if they would substantially limit a major life activity when active (for example, epilepsy).

See Facts about the Americans with Disabilities Act online for details about major provisions of the ADA and ADAAA.

COBRA: Consolidated Omnibus Budget Reconciliation Act (1986)

What the legislation does: Provides certain former employees, retirees, spouses, former spouses, and children the right to temporary continuation of health coverage at group rates.

Who the legislation applies to: Employers with 20 or more employees are usually required to offer COBRA coverage and to notify their employees of the availability of such coverage. COBRA applies to plans maintained by private-sector employers and sponsored by most state and local governments.

Unquestionably, healthcare is an extremely important part of the world of human resources. I cover the topic more extensively in Chapter 11 and Chapter 12.

The Equal Pay Act of 1963

What the legislation does: Generally prohibits discrimination in pay between men and women on the basis of sex for work requiring equal skill, effort, and responsibility and that is performed under similar working conditions.

Who the legislation applies to: All employers covered by the Fair Labor Standards Act (refer to the later section about the Fair Labor Standards Act) and, thus, all enterprises with employees who engage in interstate commerce; produce goods for interstate commerce; or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce.

FMLA: Family and Medical Leave Act (1993)

What the legislation does: Grants to eligible employees the right to take up to 12 weeks of unpaid leave per year for one or more of the following reasons:

• Because of the birth of a child and to care for the newborn child within one year of birth.
• Because of the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement.
• To care for a spouse, parent, or child with a serious health condition.
• Because of an employee’s own serious health condition that makes the employee unable to perform the essential functions of their position.
• Because of any qualifying exigency arising out of the fact that the spouse or a son, daughter, or parent of the employee is a covered military member on covered active duty (or has been notified of an impending call or order to covered active duty) in the armed forces. In addition, a qualified employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember is entitled to a total of 26 weeks in a single 12-month period to care for a seriously ill or injured servicemember.

The FMLA also prohibits an employer from interfering with the employee’s FMLA rights or from retaliating against an employee for exercising or attempting to exercise any FMLA right.

Who the legislation applies to: Generally, the FMLA covers any individual or entity “engaged in commerce or in any industry or activity affecting commerce,” employing 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Public agencies also are covered regardless of the number of employees they employ.

Additional details: Under the FMLA, employers have posting obligations and a series of notice obligations to give to employees at various points. The content and timing of these notices are complicated. A lawyer can assist in this area.

For details of the major requirements of the FMLA, see the Family and Medical Leave Act Fact Sheets online.

FLSA: Fair Labor Standards Act (1938)

What the legislation does: Generally, establishes minimum wage and overtime pay standards, restricts and regulates the employment of minors, and requires certain forms of record keeping. Also prohibits retaliation against employees who file complaints under the FLSA, have instituted or caused to be instituted a proceeding, or have testified or are about to testify in a proceeding under or related to the FLSA; in most courts, internal complaints to an employer are also protected.

Who the legislation applies to: Most private and public employers.

You can find the FLSA minimum-wage poster, titled Employee Rights under the Fair Labor Standards Act online. Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice explaining the act in a conspicuous place in all its establishments. Visit the Department of Labor’s website at www.dol.gov/whd/regs/compliance/posters/flsa.htm to download other versions of the poster.

FUTA: Federal Unemployment Tax Act (1939)

What the legislation does: Stipulates that employers must contribute to a government tax program that offers temporary benefits to employees who have lost their jobs. In most cases, includes both a federal and a state tax.

Who the legislation applies to: Generally, companies that paid wages of $1,500 or more in any calendar quarter.

Additional details: The current maximum tax imposed is at a rate of 6 percent on the first $7,000 paid annually by employers to each employee.

HIPAA: Health Insurance Portability and Accountability Act (1996)

What the legislation does: Establishes rights and protections for participants and beneficiaries in group health plans, including protections for coverage under group health plans that limit exclusions for preexisting conditions; prohibits discrimination against employees and dependents based on their health status; and allows a special opportunity to enroll in a new plan to individuals in certain circumstances. HIPAA is commonly known for its privacy rule. The law established, for the first time, a set of national standards for the protection of individuals’ health information, including standards for individuals to understand and control how their health information is used.

Who the legislation applies to: Covered entities include all employers, employers’ health plans, healthcare providers, and healthcare clearinghouses.

I provide more information on healthcare in Chapter 12.

IRCA: Immigration Reform and Control Act of 1986

What the legislation does: Among other things, requires that employers attest to the immigration status of their employees and bans employers from knowingly hiring illegal aliens — and establishes penalties for such behavior.

Who the legislation applies to: Any individual or company, regardless of size or industry.

Determining the legality of the employee’s status is the employer’s responsibility. Indeed, the IRCA introduced the Employment Eligibility Verification Form (Form I-9). Matters related to immigration and security are even more important since 2001, when the Department of Homeland Security was established and the Patriot Act was passed.

NLRA: National Labor Relations Act of 1935

What the legislation does: Relevant to this chapter, Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” to improve wages, benefits, or working conditions (including via social media) without fear of retaliation.

Who the legislation applies to: Most employees, whether the workplace is unionized or non-unionized.

Additional details: While most employees are covered by the NLRA and receive the protection of Section 7, individual complaints about working conditions are not “concerted” under the statute. Further, employees can lose protection by making statements about their employers that are egregiously offensive or knowingly and maliciously false, or by publicly disparaging the employer’s products or services without relation to a labor controversy.

Pregnancy Discrimination Act of 1978

What the legislation does: Prohibits employers from refusing to hire a woman because of pregnancy and requires that pregnant women are given the same work modifications and medical-leave benefits that are available for employees with temporary disabilities, or similarly limited in their ability to work.

Who the legislation applies to: Employers with 15 or more employees who work 20 or more weeks a year, including privately or publicly held companies; employment agencies; labor unions; and local, state, and federal governments.

Additional details: The act covers both married and unmarried women. Also, both female employees and pregnant spouses of male employees can receive pregnancy benefits. (The spouse receives benefits if she is covered by the husband’s health plan, but the employer isn’t required to pay for a spouse’s leave of absence, which is the duty of the spouse’s employer if she is working.)

The Rehabilitation Act of 1973

What the legislation does: Certain employment-related provisions of this law impose an affirmative-action obligation on federal government employers to seek out disabled individuals for employment, require federal contractors to take affirmative action in employing and advancing the employment of qualified individuals with disabilities, and prohibit discrimination on the basis of disability by private and governmental recipients of federal financial assistance. In 1998, Congress amended the Rehabilitation Act to require access to electronic and information technology that is provided by the federal government for people with disabilities. The law applies to all federal agencies when they develop, procure, maintain, or use electronic and information technology.

Who the legislation applies to: Entities that possess a certain connection to the federal government (for example, those that contract with the federal government or those that receive federal financial assistance).

Additional details: In general, requires written affirmative-action programs from employers of 50 or more people that supply or service (nonconstruction) federal contracts worth $50,000 or more.

Sarbanes-Oxley Act (2002)

What the legislation does: Requires publicly held companies to be more straightforward in reporting their financial results and how they were calculated. Also requires more stringent company controls to ensure the ethical behavior of all employees. Also prohibits employers from retaliating against employees because the employee provided information or assisted in an investigation regarding an alleged violation of Securities and Exchange Commission regulations, or any federal law protecting shareholders of publicly held companies from fraud.

Who the legislation applies to: Publicly held companies and private firms that are considering becoming public companies through an initial public offering of their stock.

Additional details: Sarbanes-Oxley requires the establishment of a company code of ethics for its senior financial officers. By extension, many companies seek to uphold the spirit of the law by requesting that their HR teams update and communicate the firm’s code of conduct for all employees.

Title VII of the Civil Rights Act (1964)

What the legislation does: Prohibits employers from discriminating against employees and applicants for employment on the basis of race, color, religion, sex, or national origin.

Who the legislation applies to: Employers with 15 or more employees for each working day in each of at least 20 calendar weeks in the current or preceding calendar year, as well as employment agencies and labor organizations, but excluding the federal government.

Additional details: The Civil Rights Act of 1991 amended Title VII and provided for the right to trial by jury on Title VII discrimination claims and authorized recovery of a broader range of remedies, including emotional distress and punitive damages (while imposing caps on such relief under Title VII).

The WARN Act: Worker Adjustment and Retraining Notification Act (1988)

What the legislation does: Requires 60 days’ advance written notice to affected employees (or their bargaining unit), as well as state and local rapid response/dislocated worker agencies, of mass layoffs or plant closings that will result in employment losses.

Who the legislation applies to: Employers with 100 or more employees.

Additional details: Many states have their own “mini-WARN” provisions that provide additional employee protections and administrative requirements for mass layoffs and/or plant closings.