Managing Equal Employment Opportunity

Overview

Public policy regarding equal employment opportunity (EEO) is expressed in constitutions and more particularly in anti-discrimination laws. In the United States, these laws exist at the federal, state and local levels. EEO laws vary greatly from one place to another in terms of employers or other entities they cover, the particular classes of persons they protect, the transactions they regulate, and the type and extent of legal remedies they provide for. The philosophical concept of EEO arises, at least implicitly, whenever employers engage employees. The methods a government uses to regulate equal employment opportunity are another manner. U.S. employers operating abroad and foreign employers operating in the United States must be mindful of relevant EEO requirements. Employers in other global contexts also need to know what standards govern their practices.

U.S. EEO laws are applicable to numerous employer actions, and HR professionals should be fully aware of their broad reach. A body of effective best practices was developed to reduce EEO complaints and to manage them effectively when they do occur. See Best Practices of Private Sector Employers.

For human resource professionals, practical EEO issues arise in connection with employee relations and staffing management, and also diversity. See What is the difference between EEO, affirmative action and diversity?

What Is an Employment "Opportunity"?

U.S. EEO laws prohibit discrimination on the basis of stated characteristics in terms and conditions of employment. As such, "opportunities" exist in numerous employment contexts, including:

• Internal and external recruiting.
• Applications for employment.
• Interviewing job candidates.
• Pre-employment testing.
• Background investigations.
• Hiring.
• Compensation.
• Benefits.
• Perquisites (also known as perks) or employee services.
• Working conditions.
• Dress and appearance.
• Leave management.
• Disciplinary actions.
• Promotions, transfers or demotions.
• Exercise of legal rights.
• Downsizing, layoff or reductions in force.
• Termination.

Protected Classes of Persons in the United States

A collection of federal laws and executive orders make it illegal to discriminate in the terms and conditions of employment based one or more of the following characteristics:

• Race.
• Color.
• Ethnicity/national origin.
• Sex.
• Sexual orientation.
• Gender identity or expression.
• Pregnancy.
• Religion, belief and spirituality.
• Age.
• Disability.
• Use of family and medical leave.
• Military status.
• Genetic information.

Federal laws

The following U.S. federal laws prohibit certain types of employment discrimination:

• The Civil Rights Act of 1866 was passed to implement the 13th Amendment to the U.S. Constitution. It contains a provision that grants all persons the same right to "make and enforce contracts . . . as is enjoyed by white citizens."¹
• The Equal Pay Act of 1963 applies to employers with two or more employees and to labor unions. The law prohibits discrimination in compensation based on sex in relation to jobs that require equal skill, effort or responsibility and that are performed under similar working conditions.
• Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, each working 20 or more weeks in the current or preceding calendar year; state and local government; employment agencies; labor unions; and U.S. citizens employed by U.S.-owned or controlled companies in foreign countries. Title VII prohibits discrimination based on race, color, national origin, sex (including sexual orientation and gender identity or expression) and religion.
• The Age Discrimination in Employment Act of 1967 (ADEA), as amended by the Older Workers Benefits Protection Act of 1990, applies to employers with 20 or more employees, each working 20 or more weeks in the current or preceding calendar year, employment agencies, labor organizations, U.S.-owned or controlled organizations operating in foreign countries, and legislative and executive branches of the U.S. government. The laws prohibit discrimination against persons age 40 and older.
• The Pregnancy Discrimination Act of 1978 amended Title VII to include pregnancy, childbirth and related conditions (e.g., abortion) in the definition of sex-based discrimination.
• The Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination on the basis of national origin or citizenship, except for illegal immigrants, by employers having four or more employees.
• Titles I and V of the Americans with Disabilities Act of 1990 (ADA) apply to employers with 15 or more employees, local governments, employment agencies and labor unions. It prohibits discrimination against qualified persons with disabilities, persons with  perceived disabilities and persons associated with those having disabilities.
• Executive Order 11246 of 1965 requires federal contractors to include agreements in contracts not to discriminate against an employee on the basis of race, color, sex, religion or national origin and requires certain federal contractors to have affirmative action plans.
• The Family and Medical Leave Act of 1993 (FMLA) applies to employers with 50 or more employees and prohibits discrimination against employees for exercising their FMLA rights.
• The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) applies to all employers, regardless of size, and to all regular employees, regardless of position or full- or part-time status, and prohibits discrimination on the basis of military status and military service obligations. USERRA also provides certain re-employment rights following service.
• Title III of the Consumer Credit Protection Act (CCPA) prohibits an employer from discharging an employee whose earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it.

State and local laws

States and municipalities in the U.S. often cover smaller employers and prohibit employment discrimination based on many of the same criteria as the federal laws and some criteria that are not covered by federal laws. For example, some states prohibit discrimination on the basis of:

• Marital status.
• Sexual orientation.
• Gender identity or expression and cross-dressing.
• Hair texture or style.
  
• Legal off-duty conduct, such as smoking.
• Whistle-blowing.
• Taking leave to serve on a jury or to be a witness in a legal proceeding or to vote.

EEO Globally

Globalization has affected the area of EEO in terms of formal applicability of one country's EEO laws to persons working in another country and in terms of expectations about the extent to which equal employment opportunity should be a societal or organizational norm.

In some instances, for example, discrimination is prohibited against the citizens of the native country but explicitly permitted when it comes to immigrants, especially illegal immigrants. There is currently debate in the U.S. as to what rights immigrants—both legal and illegal—should have in terms of EEO. The right to work in a foreign country is subject to that country's immigration laws, which vary widely from country to country.

Theories of Employment Discrimination

Since the enactment of Title VII of the Civil Rights Act, four theories of employment discrimination have emerged under U.S. law: disparate treatment, disparate impact, harassment and retaliation.

Disparate treatment

Disparate treatment discrimination occurs when an employer intentionally takes an employee's protected status into consideration when taking an adverse employment action, such as a termination or layoff decision. An example of intentional discrimination is an employer that learns of an employee's pregnancy and, based at least in part on that knowledge, selects the pregnant employee for layoff rather than a less-qualified employee who is not pregnant. See What are disparate impact and disparate treatment?

Disparate impact

Disparate impact discrimination, also known as adverse impact discrimination, occurs when an employer adopts a policy or practice that seems neutral and nondiscriminatory on its surface but has a disproportionately negative effect on members of a protected class. Practices that have been found to have a disparate impact on protected groups include:

Minimum height requirements. These have been found to disproportionately affect women, Hispanics and Asians.

Physical agility tests. These can have a disparate impact on women.

Clean-shaven requirements. These have been found to adversely affect African-American men who are disproportionately affected by a skin condition that is aggravated by shaving.

In a court proceeding, once disparate impact is established, the employer must demonstrate that the challenged requirement is job related for the position in question and consistent with business necessity. If the employee can point to a less discriminatory way to satisfy the business needs, the employer may be obligated to adopt that alternative. See Avoiding Adverse Impact in Employment Decisions.

Harassment

Harassment is a form of disparate treatment (i.e., intentional) discrimination. The theory has its roots in sexual harassment cases under Title VII, but courts have applied the same reasoning to harassment on the basis of other protected characteristics, such as race or religion. Sexual harassment can occur in two forms: by the opposite sex or by the same sex.

Quid pro quo harassment. This type of harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of employment, or when submission to or rejection of such conduct by an employee is used as the basis for employment decisions, including termination.

Hostile environment harassment. A hostile work environment exists when conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating  an intimidating, hostile or offensive work environment. For a hostile environment to be unlawful, it must be so pervasive and severe that it effectively alters the terms of employment. The environment must be such that a reasonable person would find it hostile or abusive.

Retaliation

Most U.S. laws that prohibit employment discrimination also prohibit retaliation against an employee because the employee has exercised rights under the statute at issue.

For example, Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee because that employee opposed any discriminatory practice; made a charge of discrimination; or testified, assisted or participated in any manner in an investigation, proceeding or hearing. The individual employee who claims to be the victim of discrimination can also claim to be the victim of retaliation for complaining about it.

Lawsuits based on retaliation can be even more difficult for employers to defeat than lawsuits based on direct discrimination. Employers must exercise caution not to attempt, or appear to attempt, to "get even" when conducting disciplinary terminations or layoffs in which the affected employees have participated in protected activities. See Checklist: Retaliation Prevention.

Preventing Violations and Managing Risk

Just as violations of EEO laws can be systemic, adherence to EEO requirements is most effective when systemic. Employers can take many actions to prevent EEO violations and charges of discrimination, including:

• Adopting an organizational philosophy that treats employees as individuals entitled to respect and fair treatment, not as commodities.
• Establishing clear written policies and practices that genuinely reflect the employer's EEO values, and then sticking to them and creating thorough documentation of human resource decisions.
• Emphasizing the employer's EEO values, policies and procedures in new-employee onboarding and training. See EEO Policy Statement.
• Providing ongoing training at all levels about the employer's EEO values, policies and procedures.
• Creating an EEO conflict resolution process that is truly open-door.
• Designating and empowering a responsible individual to address EEO issues: an ethics officer, EEO officer, affirmative action officer, diversity officer, ombudsman or director of human resources.
• Investigating employee complaints thoroughly and consistently.

In addition to the steps described above, employers also manage their EEO risk through:

• Internal dispute resolution programs, such as grievance procedures, mediation and arbitration.
• Employer practices liability insurance.
• Using releases of claims as part of a severance pay plan or ad hoc settlement of EEO claims.
• Ongoing management of EEO issues.

Enforcement

In the United States, EEO laws are enforced both by public agencies and private lawsuits.

Administrative agencies

Federal EEO laws are generally administered by the U.S. Equal Employment Opportunity Commission (EEOC). See EEOC Coordination of Federal Government Equal Opportunity.

Most state governments have one or more civil rights enforcement counterparts to the EEOC, referred to by the EEOC as Fair Employment Practice Agencies. State civil rights agencies usually have concurrent jurisdiction with the EEOC to investigate charges of discrimination under the laws administered by the EEOC, as well as exclusive jurisdiction to administer their own laws.

Charge of discrimination

Employees or other persons who believe their rights to equal employment opportunity have been violated may file a Charge of Discrimination with the EEOC, with the appropriate state agency or with both. A discrimination charge filed with the EEOC is a sworn statement outlining in very general terms why the charging party believes his or her EEO rights have been violated. The EEOC will assist the charging party in the preparation of this form based on an interview with the charging party. The discrimination charge is often accompanied by a more detailed sworn statement, or affidavit, especially if the charging party has legal counsel.

Agency investigation

The EEOC or state counterpart will notify the employer or other party being charged—the respondent—of the allegations made by the charging party and request that the respondent provide a written response to the allegations and copies of pertinent documents such as policies, performance evaluations and documentation of any disciplinary actions. In some instances, the investigating agency will also request information about workforce demographics. See What You Can Expect After a Charge Is Filed.

Responding to EEO Complaints

An employer's obligations in the face of an EEO complaint are to do the following:

• Conduct an investigation that is prompt, fair and thorough.
• Take appropriate remedial measures.

See How to Conduct an Investigation.

Conciliation efforts

Before or after the respondent submits its response to the charge of discrimination and agency request for information, the agency typically offers to assist the parties in reaching a negotiated resolution. Sometimes the agency investigator facilitates conciliation; sometimes the agency provides an experienced mediator and facilities for the parties to meet and to attempt to negotiate a resolution satisfactory to both sides.

Agency determination

If the parties do not agree to a negotiated resolution, the agency will proceed to make a determination about whether it believes there is probable cause to believe the respondent violated the charging party's EEO rights. Although the situation under state laws may be different, a determination that discrimination either did or did not occur is nonbinding and is probably not admissible in court proceedings.

The right to sue

The agency charged with administering the particular EEO law must be given the first opportunity to address the issue (i.e., a charging party cannot bypass the agency and immediately file a lawsuit). At the end of the investigation and issuance of its charge determination, the agency will notify the charging party in a right-to-sue letter that he or she may now proceed to file a lawsuit, if desired, and will also state how much time the charging party has to do so, typically 90 days.

Private and agency lawsuits

Under the laws administered by the EEOC, the issuance of the right-to-sue letter starts the clock running for an aggrieved person to file a complaint with an appropriate court of law. This process ordinarily requires hiring an attorney on a contingent-fee basis. In certain circumstances, though, the agency will file a lawsuit on the charging party's behalf, thereby providing the employee with expert government-paid legal counsel.

Factors in the EEOC's decision to file suit on an employee's behalf include:

• The number of employees affected (especially if a class action).
• The type of violation alleged.
• The agency's desire to flesh out unanswered questions under the law or to further the public interest in targeting certain high-priority fields or industries.

Legal Remedies

U.S. EEO laws provide courts and some agencies with a broad array of legal remedies for EEO violations, including:

• Injunction. An injunction is a court order requiring the defendant to stop doing something (i.e., a prohibitive injunction) or to start doing something (i.e., a mandatory injunction). A classic example of a prohibitive injunction would be an order to stop using an applicant screening test that is deemed to violate EEO rights.
• Reinstatement. A typical example of a mandatory injunction is an order requiring an employer to reinstate a discharged employee to the individual's former position.
• Back pay. Back pay is the basic form of damages calculation, awarding the employee the difference between what the employee actually received and what the employee would have received if not for the EEO violation. In a case under the Equal Pay Act, the back pay might be the wage differential between male and female employees. In a case for wrongful discharge under the Americans with Disabilities Act, the back pay might equal the value of the employee's total compensation package from the date of discharge through the date of the court judgment.
• Front pay. In situations in which reinstatement is not practical, a discharged employee may be awarded front pay, which is compensation for a reasonable time into the future reflecting the expected longevity of the employee's employment with the organization.
• Compensatory damages. Title VII was amended by the Civil Rights Act to allow for recovery of what it calls "compensatory damages."² The significance of the Civil Rights Act is that it allows for the recovery of damages for emotional distress, job search costs and other forms of damages that did not fall into back pay or front pay. The law also allows for trial by jury in Title VII cases. Compensatory damages are capped at various levels depending on the number of persons the defendant employs.
• Debarment. Some U.S. laws provide for debarment, disqualification from eligibility for future federal contracts or cancellation of current federal contracts.
• Punitive damages. Also known as exemplary damages, punitive damages are assessed not to compensate the victim but to punish the wrongdoer and to set an example for others.
• Agency oversight. Ongoing reporting to and monitoring by the administrative agency.
• Attorney fees. Reasonable attorney fees, interest and court costs are available under certain circumstances.

Templates and Tools

Equal Employment Policy: Basic

Equal Employment Opportunity Policy: Detailed

Nondiscrimination/Anti-Harassment Policy and Complaint Procedure

Endnotes

¹Cornell University Law School, Legal Information Institute. 42 U.S.C §1981—equal rights under the law. Retrieved from http://www.law.cornell.edu/uscode/text/42/1981.

²U.S. Equal Employment Opportunity Commission. (1991). The Civil Rights Act of 1991. Retrieved from http://www.eeoc.gov/laws/statutes/cra-1991.cfm.