Employment discrimination laws protect U.S. workers from various forms of harassment and discrimination in the workplace. Businesses must comply with these complex laws to protect their workforce and avoid litigation. Bloomberg Law provides expert analysis, comprehensive coverage, news, and the practice tools you need to stay on top of the dynamic field of employment discrimination law and to be a knowledgeable and strategic partner to your clients and stakeholders.
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Draft your equal employment opportunity policy with sample language that addresses compliance with all laws, complaint procedures, training, and more.
Equal Employment Opportunity Sample Policy
For employment attorneys advising workplace leaders on how to understand and avoid employment discrimination, various federal, state, and local laws provide guidance – including regulations on actions that employers are permitted to take as well as the actions they are required to avoid. To stay up to date, these attorneys must understand current issues in labor and employment law to ensure compliance and avoid costly and time-consuming investigations, lawsuits, and penalties.
Discrimination occurs when someone is treated differently, or less favorably, for some reason, notes the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal employment discrimination and harassment laws.
Federal laws prohibit employers from discrimination based on:
Employment discrimination can happen when this treatment occurs in all aspects of employment, including:
The EEOC enforces various federal employment discrimination laws. The federal laws that protect employees in the workplace also protect individuals against denials of reasonable workplace accommodations; improper questions about, or disclosure of, genetic or medical information; and retaliation because of a discrimination complaint or assistance with a discrimination proceeding.
The Equal Pay Act protects employees against gender-based wage discrimination. This act amended the Fair Labor Standards Act to prohibit this discrimination among employees in equivalent positions. And it requires that men and women receive equal wages if they perform work requiring the same level of skill, effort, and responsibilities in the same establishment and under similar working conditions.
Title VII of the Civil Rights Act of 1964 prohibits employers, employment agencies, and labor organizations from discriminating against employees or applicants based on race, color, sex, religion, or national origin.
Title I of the Americans with Disabilities Act (ADA) also prohibits discrimination against individuals with disabilities in all aspects of employment.
Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits discrimination against employees and applicants based on their genetic information. Employers also cannot request, require, or purchase the genetic information of employees, applicants, or their family members except under limited circumstances.
The Age Discrimination in Employment Act (ADEA) prohibits discrimination against employees 40 years of age or older.
The Pregnancy Discrimination Act prohibits discrimination against employees on the basis of pregnancy, childbirth, or related medical conditions.
Executive Order 11246 prohibits certain federal contractors and federally assisted construction contractors and subcontractors from discrimination in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The EEOC also enforces Sections 501 and 505 of the Rehabilitation Act and Sections 102 and 103 of the Civil Rights Act of 1991.
Unfair treatment may include issues like pay disparities based on gender or race, when employees are performing substantially similar work under similar working conditions and where the job requires equal skill, effort, and responsibility.
Unfair treatment also may include issues like height or weight restrictions (which are rarely necessary for job performance); tolerance of workplace harassment; and asking nonessential personal questions of job applicants, such as past bonding or security clearance problems, credit problems, personal bankruptcy, method of transportation, which relative to notify in case of emergency, sexual orientation, family plans, or living arrangements.
Employers can face the threat of litigation if their policies discriminate against or fail to reasonably accommodate Covid-19 long-haulers, after the Biden administration said workers with lingering coronavirus symptoms may be protected by federal disability law.
Equal employment opportunity laws also protect job applicants from various types of workplace discrimination during the hiring process.
For example, when selecting from an applicant pool, employers may not legally make selection decisions based on facially unlawful criteria, such as the applicant’s race or sex. Employers also cannot legally use facially neutral criteria that have an adverse impact on protected groups that the employer cannot justify as job-related and consistent with business necessity, such as improper use of scored tests or improper use of nonscored objective criteria, including education, experience, or height and weight requirements. Also, it is unlawful to adopt subjective criteria that are intended to screen out protected groups.
Courts have declined to require employers to adopt “optimal hiring practices,” but they continue to scrutinize the hiring criteria used to ensure that they aren’t discriminatory against applicants. Therefore, attorneys also may want to pay special attention to hiring practices to avoid even the appearance of discrimination, such as:
Employers should avoid certain topics during the job application and interview process. For example, some state laws expressly prohibit certain types of inquiries related to race, sex, religion, age, and other protected characteristics.
Furthermore, equal employment opportunity laws can be complicated when it comes to defining who is considered a job applicant; federal agencies grappled with one definition for an “internet applicant” as late as 2006. Among other characteristics, an internet applicant is considered to be an individual who “submits an expression of interest in employment through the internet or related electronic data technologies,” with this individual’s expression of interest indicating that the individual possesses the basic qualifications for the position.
Section 701(b) of Title VII of the Civil Rights Act defines an employer as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any “agent” of such a person. The ADA likewise has a 15-employee threshold, whereas the ADEA sets the threshold at 20 employees. The requirement that a covered employer meet the threshold number of employees is not jurisdictional but is a substantive element of any Title VII, ADA, or ADEA claim.
It is important to note that Title VII does not define who is an “employee” to be counted toward the 15-employee requirement to be a covered employer. As a result, in workplace discrimination cases, courts have applied the traditional labor law standards of economic realities and right of control in determining whether the relationship between the company and an individual is that of “employer-employee.” This means true independent contractors are not counted.
In addition, employment attorneys should note that separate business entities may be combined and treated as a single employer for purposes of both coverage (number of employees) and liability, so that an individual discriminated against with respect to employment by one of the entities may file a charge against all of them. That said, demonstrating that two entities constitute a “single employer” requires proof of an integrated enterprise.
Title VII’s definition of an “employer” also includes “any agent” of an employer. Here, most courts have applied traditional principles of agency law, so if the person who committed a discriminatory act is deemed to be the employer’s agent and acting in the course and scope of the agency relationship, then the employer is liable, absent some other defense to liability.
One recurring agency issue concerns the potential liability of regulators or licensing agencies. In workplace discrimination cases, most hold that such agencies – even though they unquestionably constitute employment gatekeepers – are not agents of the employing entities and therefore cannot be liable under Title VII.
Title VII does not provide all-encompassing coverage to every individual in the workplace. For instance, although employees subject to civil service laws are covered employees, Title VII’s definition of “employee” exempts from coverage those persons who are:
Section 702(a) of Title VII also notes that the law doesn’t protect alien employees outside of the U.S. and its territories. However, the EEOC contends that Title VII does extend to alien employees of a U.S. company who are based outside the United States but perform part of their work in the United States.
In addition, Title VII provides that, with respect to employment in a foreign country, the term “employee” covers only individuals who are U.S. citizens. However, even for U.S. citizens, extraterritorial employment practices are exempt if compliance with U.S. law would violate applicable foreign law.
The EEOC is authorized to investigate charges of discrimination, and it is the only federal agency whose investigation satisfies the law’s administrative exhaustion requirements under Title VII. The EEOC reports that it processes around 80,000 job discrimination complaints each year and works with more than 90 local and state agencies who investigate approximately 50,000 additional job discrimination complaints.
During an investigation, the commission has the right to use subpoena power to:
The investigative process gives the EEOC the information it needs to determine whether there is reasonable cause to believe discrimination has occurred. The commission can’t make a reasonable cause determination without investigating and establishing a factual basis for the determination.
The scope of an investigation is typically limited to those areas necessary to make a reasonable cause determination based on the charge. However, the investigation can be expanded to include other violations uncovered during the investigative process. And if an investigation turns up additional violations, the EEOC can add these violations to its suit.
The EEOC can sue employers in court to seek resolutions. During an EEOC investigation, investigators screen cases to determine if preliminary relief is appropriate. Where a charge alleges discrimination based on race or color, religion, national origin, sex, or age, the EEOC can seek temporary or preliminary relief in a variety of circumstances, including:
In some investigative cases, the EEOC will work with an employer directly so that certain workplace changes can be implemented. For instance, after reviewing requests for information and other evidence, investigators can initiate settlement attempts if they determine an extended investigation isn’t merited. If the negotiations fail, investigations continue. There are no restrictions on the duration of an EEOC investigation.
Notably, employers are required to post official EEOC notices to employees to comply with several federal laws. The EEOC regulates penalties for employers that violate the posting requirements under Title VII of the Civil Rights Act, the ADA, and the Genetic Information Nondiscrimination Act (29 C.F.R. § 1601.30).
Today’s labor and employment practitioners advise clients and stakeholders on complex legal questions – from issues that arose during the pandemic, including vaccine mandates and return-to-office policies, to ongoing discussions around workplace safety, wages, leave, diversity and inclusion, and arbitration. And they’re under more pressure than ever to deliver reliable counsel – even as the field of labor and employment law continues to rapidly change.
Our GC Guide to Navigating 2024: Labor & Employment outlines changes in labor and employment issues that could impact your company. Download the report for insights to help you prepare.
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