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The Essentials of EEO and Affirmative Action Compliance

August 5, 2010

Questions

• If you have questions

during the presentation,

please submit them using

the “Questions” feature

• Questions will be

answered at the end of the

webinar

What is Discrimination?

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Discrimination refers to any instance of treating

someone in a less favorable manner on the basis of

that person's characteristics.

The legal definition of discrimination, however, is

narrower. Under the law, only certain behaviors are

considered discrimination and only certain classes

(protected classes) or types of discrimination are

illegal.

Unlawful discrimination occurs when a person is

harassed or treated arbitrarily or differently because

of their membership in a "protected class." A

protected class is a group of people who share

common characteristics and are protected from

discrimination and harassment by federal, state,

and/or local laws.

Discrimination Is NOT…

• Personality differences or conflicts

• General treatment not based on the inclusion in a protected class

• Adverse employment decisions not based on inclusion in a protected class

• Response to poor performance

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Adverse Employment Action

• Adverse employment action is behavior by an employer that hurts an employee

• Adverse employment action is illegal if the decision is based on inclusion in a protected class

• Examples of adverse employment action include: terminating the employee or not selecting him or her for a promotion, harassing the employee, denying the employee's request for a reasonable accommodation

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Protected Classes

• Race

• Color

• Gender (including sexual harassment)

• Religion

• Ancestry

• National Origin

• Marital Status

• Age

• Sexual Orientation

• Disability Status (actual, regarded as having, and/or record of having a disability)

• Veteran Status

A protected class is a group of people who share common characteristics and are protected from discrimination and harassment by federal, state, and/or local laws.

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Employers and the Law

• The U.S. Equal Employment Opportunity Commission (EEOC) enforces the most significant ("landmark") Federal discrimination laws related to employment

• States are permitted to enact and enforce their own employment discrimination laws that include or expand the minimum protections afforded by the Federal laws

• Some states refer to discrimination laws as fair employment practices (FEP) laws. A good resources for state FEP law is found at http://employeeissues.com/state_labor_laws.htmor by checking with the individual state’s Department of Labor or EEOC

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“Landmark Laws”

• Civil Rights Act of 1964Title VII of this Act is "the" landmark, Federal employment discrimination law. It prohibits discrimination in any aspect of employment on the basis of race, color, religion, national origin or sex (gender). (See also Sexual Harassment in the Workplace below.) This Act also established the U.S. Equal Employment Opportunity Commission (EEOC)

• Civil Rights Act of 1991Amends the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, provide for damages in cases of intentional employment discrimination, clarify provisions regarding disparate impact actions, and for other purposes

• Older Workers Benefit Protection Act of 1990OWBPA amended the Age Discrimination in Employment Act of 1967 (above), by clarifying protections for workers of age 40 and older regarding employee benefit plans

• Affirmative Action under Title VIITitle 29, Chapter XIV, Part 1608 is a labor law enforced by the Equal Employment Opportunity Commission, that establishes guidelines for developing appropriate affirmative action programs under Title VII of the Civil Rights Act of 1964

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“Landmark Laws”

• Age Discrimination in Employment Act of 1967prohibits age discrimination in any aspect of employment against individuals who are 40 years old or older. Amended by the Older Workers Benefit Protection Act of 1990 (below), which makes it unlawful to discriminate on the basis of age against individuals who are 40 or older, for employment benefit programs

• Equal Pay Act of 1963disallows wage discrimination based on gender for all jobs that require equal skill, effort and responsibility under similar working conditions at the same employer. Part of the Fair Labor Standards Act.

• Older Workers Benefit Protection Act of 1990OWBPA amended the Age Discrimination in Employment Act of 1967 (above), by clarifying protections for workers of age 40 and older regarding employee benefit plans.

• Pregnancy Discrimination Act of 1978Another of the landmark, Federal discrimination laws protecting employment, it prohibits sex discrimination on the basis of pregnancy and childbirth, and related medical conditions. An amendment to the Civil Rights Act of 1964 listed above.

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“Landmark Laws

• Americans with Disabilities Act of 1990The ADA too is considered to be among the landmark, Federal employment discrimination laws. It prohibits discrimination in any aspect of employment against qualified disabled individuals, because of their disabilities. Requires employers to provide reasonable accommodations for disabled workers. Effective January 1, 2009, the ADA was strengthened by the Americans with Disabilities Act Amendments Act of 2008 (ADAA or ADA Amendments Act for short) to better protect disabled workers from employment discrimination)

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Other Laws

• Genetic Information Nondiscrimination Act of 2008GINA prohibits genetic discrimination in employment and health insurance

• Lilly Ledbetter Fair Pay Act of 2009Changed the statue of limitations for filing a wage discrimination charge with the EEOC, from 180 days after the first incident of wage discrimination to 180 days after each incident (or 300 days after each incident if a state law comes into play)

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Other Laws

• Bankruptcy Act has employment-related provisions make it unlawful for employers to discriminate against employees and job applicants because of bankruptcy or the bad debts they had before filing for bankruptcy

• Immigration Reform and Control Act of 1986While not a Federal employment discrimination law per se it amends the Immigration and Nationality Act to prohibit employment discrimination against individuals other than illegal aliens, based on citizenship status or national origin

• Uniformed Services Employment and Reemployment Rights ActIncludes provisions that protect the jobs and employer-provided benefits of service members returning to the civilian workforce, along with provisions that prohibit job discrimination against veterans on the basis of their military service

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Sexual Harassment

• There is no standalone, Federal employment discrimination law that prohibits sexual harassment in the workplace

• Rather sexual harassment in the workplace is a form of sex discriminationthat is prohibited under the Civil Rights Act of 1964

• Many states have their own workplace sexual harassment law that includes or expands the minimum Federal protections

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Best Practices to Prevent Discrimination

• Education and Training

– Manager and Supervisor Specific Training

• No- Tolerance Policies on Discrimination and Harassment

– Hiring

– Retention

– Promotion

• Reporting /Non Retaliation

• Standardize Processes for Hiring, Discipline/Retention, Promotion and Retention

Documentation is critical!

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Reasonable Accommodation and the ADA

Employers must make reasonable accommodations for qualified individuals unless the employer can show undue hardship

• What is a reasonable accommodation?

– Making existing employee facilities accessible to individuals with disabilities

– Job Restructuring

– Part-time or Modified Work Hours

– Acquisition or Modification of Equipment

– Modifications in Exams, Training, Material or Polices

– Provision of qualified readers or interpreters

– Reassignment to a vacant position

• What is Undue Hardship?

– Significant difficulty or expense

– Takes into consideration the circumstances of the individual employer

– Must be assesses on a case by case basis

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Reasonable Accommodations and the ADA

• What are essential functions?

– Position exists to perform a specific function

– Number of employees available to perform function- if only a few then the function is essential

– Degree of skills or expertise

• What documentation is required to validate essential functions?

– Job description

– Amount of time spent on the job performing the essential function

– Consequence of not requiring the individual to perform the function

– Any collective bargaining agreements

– Work experience of past or current incumbents in position

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Reasonable Accommodation and the ADA

• 5 steps to determine reasonable accommodation

– Analysis the job (job description) to confirm essential functions

– Consult with the individual to understand the precise limitations

– Indentify possible accommodations

– Consider the preferences of the individual

– Select and implement the accommodation(s) that are most reasonable for individual and employers

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Reasonable Accommodations and the ADA

• What does an employer NOT have to do?

– Eliminate an essential function of the job

– Lower production standards

– Create a new job

– Provide personal use items (if also needed off the job)

– Provide personal use amenities (hotplate, refrigerator) if not provided to other employees

– Take on costs that would pose an undue hardship to the business

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Religious Accommodations

• Employers may not exclude an applicant from hire or fail to promote or retain an employee because they may need a reasonable accommodation for religious belief, practice or observance (Title VII)

• The employer does not have to provide accommodation that would cause undue hardship but should seek to be as flexible as possible

• Title VII defines undue hardship as more than “de minimis” cost or burden- this is a lower standard than the ADA imposes

• Factors to determine cost or burden include type of workplace, nature of the duties, cost of the accommodation, size of employer and number of employees who may need the accommodation

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Religious Accommodations

• What are the most common methods of accommodations?

– Changes in schedule, voluntary substitutes, shift swaps

– Changes in duties or providing a lateral transfer

– Making and exception in dress or grooming rules

• Case by case determination of true business necessity

• Reliance on “customer preference” or “image” is risky

– Use of the work facility for religious observance

– Payment of union fees or agent fees to a charity of choice

– Accommodation of prayer, proselytizing or religious expression

• Not required is the expression could be perceived as the message of the employer or could be considered harassment

• Not required if disruptive to workplace or if other employees complain

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Equal Opportunity Employment vs. Affirmative Action

• Equal Opportunity for employment and non discrimination in the workplace is required for allemployers, public or private

• EEOC-1 Reporting is required for all employers with more than 100 employees

• Affirmative Action Program are required for federal contractors and subcontractors and for some state contractors and subcontractors

• Affirmative Action is the set of public policies and initiatives designed to help eliminate past and present discrimination based on race, color, religion, sex, national origin, disability or veteran status

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Advanced EEO and Affirmative Action Compliance

Join us again on August 19th to learn:

• How to respond to employment discrimination charges filed with the EEOC and FEP agencies

• EEO-1 Reporting Requirements

• Overview of Affirmative Action plans including an explanation of the legal obligations and the required components of an affirmative action plan

• OFCCP Compliance for federal contractors and subcontractors

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Questions and Answers

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QUESTIONS?

Contact Information

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The recorded webinar and presentation slides will be emailed to

you today including your local representative’s contact information.

www.kpaonline.com

kcarlson@kpaonline.com

866-228-6587