August 21, 2018
Author: Kyle R. Still
Organization: Ward and Smith, P.A.
I. OVERVIEW OF EEO LAWS: TITLE VII, ADEA, ADA, ETC., IN BRIEF
We live in a regulated society. The employment relationship is subject not only to the common law that has developed around the at-will doctrine and the exceptions to that rule, but also to numerous federal and state statutes and regulations. An ever-growing list of statutes prohibits discrimination in employment on the basis of various protected classes including race, color, religion, sex, national origin, pregnancy, citizenship, age, disability status, genetic information, membership in the armed forces, membership in a labor union, and so on. The list does not end there, however, as employee protections continue to expand. In fact, the Equal Employment Opportunity Commission (\"EEOC\") recently held that discrimination in federal employment based on an employee's change in gender identity was a violation of Title VII.
When employers think not only in terms of laws prohibiting discrimination, but also more broadly in the context of anti-retaliation, the universe is constantly expanding. Here is a quick review of some of the federal laws that create protected classes:
Federal EEO Laws
a. Race, color, religion, sex, and national origin––Title VII of the Civil Rights Act of 1964 (\"Title VII\"), 42 U.S.C. §§ 2000e, et seq.
b. Affirmative Action plans and protection against race, color, religion, sex, and national origin discrimination for government contractors––Executive Order 11246.
c. Citizenship-status and national origin––Immigration Reform and Control Act of 1986 (\"IRCA\"), 8 U.S.C. §§ 1324b(a)(2)(A), (B).
d. Pregnancy and related medical conditions––Pregnancy Discrimination Act (\"PDA\"), codified as amended at 42 U.S.C. § 2000e-(k).
e. Individuals 40 years of age and older––Age Discrimination in Employment Act (\"ADEA\"), 29 U.S.C. §§ 621, et seq.
f. Individuals with \"disabilities\"––Americans with Disabilities Act of 1990 (\"ADA\"), 42 U.S.C. §§ 12101, et seq. See also Rehabilitation Act of 1973, 29 U.S.C. §§ 790, et seq.
g. Individuals who perform \"service in the uniformed services\" including National Guard duty—Uniformed Services Employment and Reemployment Rights Act (\"USERRA\"), 38 U.S.C. §§ 4301, et seq.
h. Wage disparity base on sex––Equal Pay Act of 1963 (\"EPA\"), 29 U.S.C. § 206(d).
i. Unauthorized background checks––Fair Credit Reporting Act (\"FCRA\"), 15 U.S.C. §§ 1681-1681x
j. Race––The Civil Rights Act of 1866, 42 U.S.C. § 1981 (\"Section 1981\").
k. Health status related factor––Health Insurance Portability and Accountability Act of 1996 (\"HIPAA\"), 29 U.S.C. § 1182.
l. Genetic information––Genetic Information Nondiscrimination Act of 2008 (\"GINA\"), 42 U.S.C. § 2000ff.
m. Protected activity, including right to engage in concerted activity and Section 7 rights––National Labor Relations Act (\"NLRA\"), 29 U.S.C. §§ 151, et seq.
n. Job-protected leave of absence––Family and Medical Leave Act (\"FMLA\"), 29 U.S.C. §§ 2601, et seq.
o. Protects applicants and incumbent employees of government agencies, and protects incumbent employees of private employers from discrimination related to filing for bankruptcy––Federal Bankruptcy Act, 11 U.S.C. §§ 525.
These are a sample of the Equal Employment Opportunity Laws (\"EEO Laws\") to which we will return continually. Not that the foregoing list is exhaustive, but it does serve to remind us of the complex weave (and sometimes redundancy) of law that protects individual job-seekers based on class, condition, characteristics, status, or traits.
A. EEO Laws
Employees find protection in the EEO Laws from discrimination and harassment on the basis of a protected category, trait, characteristic, or condition. Discrimination generally refers to less favorable treatment because of sex, race, religion, handicap, disability, age, national origin, color, or some other legally protected classification. Harassment is unwelcome conduct based on a protected classification or characteristic that interferes with the employee's ability to perform the employee's job.
Freedom from discrimination, where the law does afford protection, means that the employer cannot make job decisions because of a factor such as race, color, religion, sex (including pregnancy), national origin, disability, age (40 or older), and so on. This protection applies to many types of job decisions including hiring, firing, promotions, training, discipline, wages, and benefits.
Freedom from harassment includes the right to work in an environment free of unwelcome conduct based on race, color, religion, sex (including pregnancy), disability, age (40 or older), etc. To be unlawful, and thus actionable, the behavior must be both subjectively and objectively offensive – that is, not only must it be genuinely unwelcomed by the employee, but it also must be so extreme as to be objectionable to reasonable people. Performance-based nagging by a supervisor is not unlawful harassment.
B. Application of EEO Laws
Not all employers are subject to all of these laws. For example, Title VII and the ADA apply to employers who regularly employ 15 or more employees. The ADEA applies to employers who regularly employ 20 or more employees. Here is a brief overview of important EEO Laws.
1. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. Title VII prohibits (i) discrimination and harassment on the basis of race, color, religion, national origin or sex (including pregnancy); and (ii) retaliation against individuals who claim Title VII rights or participate in Title VII proceedings. Applies to employers with 15 or more employees.
2. Civil Rights Act of 1866, 42 U.S.C. §1981. Employers are prohibited from discriminating against individuals on the basis of race in employment. Employers are covered regardless of the number of employees. There is no administrative procedure to follow with a section 1981 claim, because an employee can file suit directly in civil court.
3. Executive Order 11246. Prohibits discrimination by federal contractors on the basis of race, color, religion, sex, or national origin. In addition, certain employers are required to implement affirmative action plans to provide equal employment opportunities to minorities and women.
4. Age Discrimination in Employment Act. The ADEA forbids (i) discrimination in employment on the basis of age against individuals who are 40 years of age and older; and (ii) retaliation against persons who assert ADEA rights or participate in ADEA proceedings. The Older Workers Benefit Protection Act mandates minimum standards for the waiver of ADEA claims, such as requiring that employees receive 21 days to review an agreement or release, as well as 7 days to revoke his or her acceptance. Applies to employers with 20 or more employees.
5. Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq. The ADA (i) forbids discrimination against qualified individuals with disabilities who can perform the essential functions of a job; (ii) requires that employers provide reasonable accommodations to such individuals; and (iii) forbids retaliation against individuals who assert ADA rights or participate in ADA proceedings. Applies to employers with 15 or more employees.
6. Genetic Information Non-Discrimination Act (\"GINA\"). Employers may not discriminate against employees or applicants because of genetic information, and cannot use genetic information in making employment decisions. GINA restricts acquisition of genetic information by employers and strictly limits the disclosure of such information. Applies to employers with 15 or more employees.
C. Enforcement of EEO Laws
Some EEO Laws (including Title VII) are administered and enforced by the EEOC. The EEOC also has jurisdiction over age discrimination cases under the ADEA, and charges made under the ADA, which protects employees against discrimination on the basis of disability and may require an employer to make a reasonable accommodation for an individual who has a disability but otherwise can perform the essential functions of the job.
The U.S. Department of Labor (\"DOL\"), through the EEOC, has enforcement power over violations of the Family and Medical Leave Act (\"FMLA\"). The FMLA, like many of the laws administered by the EEOC, also includes anti-retaliation provisions.
Protection may come from a more oblique angle. An individual with a history of filing a worker's compensation claim is afforded ADA protection in several respects when he or she applies for another job. See generally U.S. Equal Employment Opportunity Commission (EEOC), EEOC Enforcement Guidance: Workers' Compensation and the ADA. For example, the EEOC takes the position that queries about past claims may not be made until after a conditional offer of employment has been extended. Id. at Question No. 4. Cf. Retaliatory Employment Discrimination Act (\"REDA\"), N.C. Gen. Stat. § 95-240, et seq., which protects an \"employee\" from retaliatory action for filing a claim under the Workers' Compensation Act, inter alia. Id. at -241(a)(1).
In addition to the protections employees are afforded by EEO laws, the right of the individual applicant to be free from discrimination creates a corresponding duty on covered employers to the applicant. Permissible interviewing techniques and questions are discussed in further detail in section C.
II. PREVENTION OF SEXUAL HARASSMENT
A. What is Sexual Harassment?
As the term is defined by the EEOC, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when:
_ Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment;
_ Submission to or rejection of the conduct by an individual is used as the basis for employment decisions affecting such individual; or,
_ The conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
Sexual conduct becomes unlawful when it is unwelcome. Unwelcome conduct is conduct of a sexually aggressive or sexually-oriented nature that is not solicited or invited and is regarded as undesirable or offensive. Even conduct that initially is voluntary can later become unwelcome.
The following are examples of potentially harassing conduct:
• Physical Conduct
– \"Accidental\" collisions and other touching
– Brushing, rubbing, or hugging
• Verbal Conduct
– Sexual offers
– Offensive jokes or remarks
– Threats - Pressure for sexual favors
• Nonverbal Conduct
– Posting graffiti or sexually explicit cartoons
– Transmitting offensive e-mails and faxes
In addition to sexual harassment, there are other forms of unlawful harassment, such as harassment based on an employee's race, color, religion, gender, national origin, age, disability, or other legally protected status, or the employee's relationship or affiliation with anyone in these categories. Examples of other unlawful harassment include:
_ Verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his or her race, color, gender, religion, age, national origin, disability, or legally protected status.
_ Acts of discriminatory intimidation, ridicule, or insults that create an abusive working environment.
_ Expressions of stereotypical views that have a stigmatizing or exclusionary effect.
B. Hostile Work Environment Claims
When harassing conduct has the purpose or effect of unreasonably interfering with the victim's job performance or creates an intimidating, hostile, or offensive work environment, the employee will likely have a hostile work environment claim. To make out a claim for hostile work environment, the harassment must be sufficiently severe or pervasive to alter the conditions of the person's employment and create an abusive working environment. Additionally, the environment must be both objectively hostile or abusive (meaning a reasonable person would find it hostile or abusive) and subjectively hostile or abusive (meaning the complaining employee actually believes it is hostile or abusive).
The following factors are used for determining whether a hostile work environment exists:
_ The frequency of the conduct
_ The severity of the conduct
_ Whether the conduct is physically threatening or humiliating
_ Whether others joined in perpetuating the conduct
_ Whether the conduct is directed at more than one person
_ Whether the conduct interferes unreasonably with an employee's work performance
However, trivial or merely annoying sexual flirtation, innuendo, vulgar language, or offensive remarks do not create a hostile working environment.
C. When is the Employer Liable?
Protection against unlawful harassment is a civil rights obligation for employers with 15 or more employees. An employer's failure to protect against unlawful harassment may lead to liability either for civil rights violations or tort liability for wrongful discharge, negligent hiring, or intentional infliction of emotional distress. Employers are subject to vicarious liability for any unlawful harassment employees are subjected to by the employer's supervisors if the harassment results in a tangible employment action. Supervisors are individuals who have the authority to undertake or recommend tangible employment actions or to direct employee's daily work activities. Courts also have found individuals to be supervisors for purposes of finding employer liability where the employee reasonably believed that the individual had actual authority over the employee's work.
Employers can take advantage of an affirmative defense by proving three elements: (1) the employee was not subjected to any tangible employment action, (2) the employer exercised reasonable care to prevent and promptly correct any alleged unlawful harassment; AND (3) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
So what constitutes reasonable care on the part of the employer to prevent and promptly correct alleged unlawful harassment? Courts have defined \"reasonable care\" to mean acts by the employer, such as disseminating comprehensive policies that prohibit sexual and other types of unlawful harassment and providing an effective mechanism for receiving and addressing employee complaints.
D. Employer Responsibilities
The EEOC has published guidelines on what information should be communicated to employees through an employer's harassment policy. These guidelines advise employers to include in their policies a clear explanation of prohibited conduct and reporting procedures for employees. It is particularly important for an employer's policy to include more than one avenue for reporting incidents of alleged harassment. An employer's policy also must include a provision stating that an employee will not suffer retaliation for making good faith complaints of alleged harassment.
The EEOC guidelines further require employers to train their employees, particularly their supervisors and management personnel, on a periodic, ongoing basis so that they understand their responsibilities under the harassment policy and the complaint procedure. While the EEOC guidelines do not define \"periodic,\" best practice is to conduct this type of training at least annually.
E. Policies to Implement and Follow
Preventative employment law practices are the best tools to limit employer liability. Employers should adopt policies and procedures that not only prohibit discrimination and harassment but also provide a mechanism for receiving and addressing employee complaints of the illegal behavior. Recommended policies and procedures:
_ Training that teaches employees to understand and recognize various types of harassment and discrimination;
_ Assurances of protection against retaliation;
_ Clear explanations of prohibited conduct (ex. zero tolerance policy);
_ Multiple avenues for reporting complaints;
_ Assurances that the employer will protect the confidentiality of all parties involved to the extent possible;
_ A complaint process that provides prompt, thorough, and impartial investigations; and,
_ Assurances that employer will take immediate and appropriate corrective action when it determines that harassment or discrimination has occurred.
Supervisor and employee training should include:
_ An explanation of the types of conduct that violate the anti-harassment policy (ex. zero tolerance policy);
_ An explanation of the seriousness of the policy;
_ A description of the responsibilities of supervisors and managers when they learn of alleged harassment or discrimination; and,
_ An explanation of the employer's policy against retaliation.
III. A GUIDE TO INTERVIEWING
The best rule of thumb in interviewing is that an interviewer should not ask an interviewee anything that is not unquestionably job-related. The following questions are rarely, if ever, job-related and should not be asked:
1. The applicant's age and/or date of birth;
2. Where the applicant was born;
3. How many children the applicant has;
4. Who will care for the children while the applicant is at work;
5. Whether the applicant is married, divorced, separated, widowed, or single;
6. How long the applicant has lived at his or her current address; and,
7. Whether the applicant has ever been arrested.
Disability-related inquiries are perhaps the most daunting to the interviewer. They need not be. The Equal Employment Opportunity Commission (\"EEOC\") issued \"Enforcement Guidance on Pre-Employment Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act\" (the \"Enforcement Guidance\"). The Enforcement Guidance gives specific information about what types of interview questions and pre-employment tests are rendered unacceptable by the ADA. Prudent employers will, therefore, ensure that all of their interviewers become familiar with the Enforcement Guidance in order to minimize the risk of litigation.
The ADA's provisions concerning disability-related inquiries reflect the intent of Congress to prevent discrimination against individuals with hidden disabilities. In the past, applicants were often asked about their medical conditions at the time that they submitted their applications. If an applicant who disclosed a disability was then rejected, he or she would not know whether the rejection was because of the disclosure of the disability, or because of a non-medical criterion.
Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This prohibition ensures that the applicant's disability is not considered prior to the assessment of the applicant's non-medical qualifications. At the pre-offer stage, employers may ask about an applicant's ability to perform specific job-related functions. An employer also may ask other questions that are not disability-related.
The following inquiries are not disability-related and thus, are not prohibited:
1. Can you perform the essential functions of this job, with or without reasonable accommodation?
2. Please describe/demonstrate how you would perform these functions.
3. Do you have a cold?
4. How did you break your leg?
5. Can you meet the attendance requirements of this job?
6. Do you illegally use drugs?
7. Do you have the required licenses to perform this job?
When questioning an applicant about the performance of job duties, a recruiter must give fairly detailed fact-based descriptions of the job duties. For example, a recruiter may ask an applicant, \"This job requires an employee to transport 20-pound bags of frozen hush puppies from a loading dock, down two flights of steps, to a processing machine. Can you perform this function with or without reasonable accommodation?\"
A recruiter also may state to an applicant, \"This job requires an employee to maneuver though four-foot diameter underground sewer tunnels for four hours per day. Can you perform this function with or without reasonable accommodation?\"
For occupations involving office work, a recruiter may state, \"This job requires an employee to prepare written reports containing detailed factual summaries and analyses. These reports must frequently be prepared within tight time frames. Can you perform this function with or without reasonable accommodation?\"
An employer also may inquire about an applicant's ability to perform both essential and marginal functions. However, an employer may not reject the applicant because he or she is unable to perform a marginal function because of a disability.
For example, if a secretarial job involves typing as an essential function, and driving as a marginal function, a recruiter may ask about an applicant's ability, with or without reasonable accommodation, to both type and drive.
The following examples are disability-related inquires and are not permitted:
1. Do you have AIDS?
2. Do you have a disability which would interfere with your ability to perform the job?
3. How many days were you sick last year?
4. Have you ever filed for workers' compensation?
5. Have you ever been injured on the job?
6. How much alcohol do you drink each week?
7. Have you ever been treated for alcohol problems?
8. Have you ever been treated for mental health problems?
9. What prescription drugs are you currently taking?
An employer may not make such inquiries about a disability at the pre-offer stage even if the employer legitimately would be able to exclude the applicant because of the disability. For example, a federal law prohibits someone with epilepsy from working as an interstate truck driver. Nevertheless, a recruiter for the trucking company may not ask at the pre-offer stage whether a truck driver applicant has epilepsy.
Perhaps the most difficult aspect of the Enforcement Guidance applies when the interview turns toward the issue of reasonable accommodation for disabilities. The Enforcement Guidance allows a limited discussion in those situations. Specifically, if
1. an applicant reveals a hidden disability;
2. an applicant specifically asks whether an employer can accommodate a disability; or,
3. an employer reasonably believes that an applicant will need reasonable accommodation because of an obvious disability; then, an employer may ask the applicant:
A. whether he or she would need a reasonable accommodation to perform job-related tasks; and,
B. what type of reasonable accommodation he or she would need to perform the functions of the job.
The employer may not, however, ask any questions about:
1. the nature or severity of the applicant's disability; or,
2. accommodations that are not specifically related to job functions.
In sum, employers should be careful to limit their pre-offer comments about reasonable accommodation to the very narrow set of circumstances listed above, and make sure that any discussion of reasonable accommodation goes directly to the applicant's ability to perform job-related tasks.