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EEOC areas of enforcement As you would expect, the U.S. Equal Employment Opportunity Commission's (EEOC) areas of enforcement revolve around discrimination. Let's take a look at some key legislation that addresses employer liability for discrimination and other issues. Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 asserts that it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment" because of race, color, religion, sex, including sexual harassment, national origin, and pregnancy, childbirth, or related medical condition. Title VII includes (by direct or indirect evidence) intent to discriminate (known as "disparate treatment") and statistical imbalances (known as "disparate impact"). It applies to employers with 15 or more employees. This includes part-time, temporary and leased employees. The size of the employer determines the maximum damages: Remedies under Title VII include the following: A 1998 U.S. Supreme Court ruling for sexual harassment claims that employer efforts at prevention and correction will be key to defense. Additionally, an employer that does NOT have a disseminated sexual harassment policy with a complaint procedure will be automatically liable. So an employer that has made efforts at preventing sexual harassment and has disseminated a sexual harassment policy has an affirmative defense, if harassment did not result in "tangible employment action" (fire, demoted, caused to lose benefits, etc.). An employer will be held vicariously liable for acts by supervisors, regardless of existence of policy if sexual harassment results in tangible employment action. Actions of non-supervisors will be based on negligence ("knew or should have known"). The Supreme Court specified that the complaint procedure should provide alternative avenues of complaint so that the victim is not forced to complain first to a supervisor that could be the offender. Section 1981 of the Civil Rights Act of 1866 Section 1981 of the Civil Rights Act of 1866 applies to race discrimination and is often used in conjunction with Title VII of the Civil Rights Act of 1964. It applies to all employers, private or public. There is a disparate impact field under Title VII. This law does not require administrative prerequisites, unlike Title VII, with which there is a filing charge with the EEOC. Remedies from Section 1981 include the following: Equal Pay Act of 1963 Another federal law that deals with discrimination is the Equal Pay Act of 1963, which concerns claims involving unlawful differentials in compensation based on sex. Executive Order 11246 Executive Order 11246 has to do with non-discrimination and affirmative action requirements for federal contractors. It prohibits discrimination and requires affirmative action with regard to race, sex, ethnicity, and religion. The order applies to independent contractors in a federal construction contract or with a federally assisted construction or non-construction contract in excess of $10,000. Age Discrimination in Employment Act The Age Discrimination in Employment Act applies to employees who are 40 years of age and older. This statute makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age". Older Workers' Benefit Protection Act Older Workers' Benefit Protection Act (1990) amends the Age Discrimination in Employment Act (1969). The threshold requirements to ensure an employee's waiver of the right to sue under the Age Discrimination in Employment Act would be that the waiver of right was "knowing and voluntary". The curriculum currently used for a valid waiver of an Age Discrimination in Employment Act claim is as follows: Title I of the Americans with Disabilities Act Title I of the Americans with Disabilities Act prohibits employment discrimination against people with disabilities in the private sector and state and local governments. This includes physical or mental impairment that substantially limits one or more of the major life activities of the individual. Furthermore, the employee must have a record of such impairment and must be regarded to have such impairment. Title I applies to employers with 15 or more employees. Claims are initially processed by EEOC. Remedies under Title I include the following: A charge must be filed within 300 days of the alleged discrimination (though this timeline might be 180 days in some states). It must be filed within 90 days after receipt of the right-to-sue notice. Family Medical Leave Act The Family Medical Leave Act provides 12 weeks of unpaid, job-protected leave from work per year. In addition, it requires certain group health benefits to be maintained during the leave. This law applies to employers with 50 or more employees. The act allows for the following types of leave for family medical reasons: Various other federal acts and laws Understandably, there are many acts of legislation that were created to protect employee rights. The following is a sampling of other legislation: There are, of course, a variety of ambiguous exceptions, exemptions and exclusions that are related to employee rights and employer liability. State and local laws Most states have various laws governing employer's liability for discrimination and other wrongful acts. In California, state law is broader than federal law; therefore, filings are normally with the Department of Fair Employment and Housing instead of the EEOC. It is important to deal with an Employment Practices Liability counsel that is knowledgeable about state employment laws and litigation. Fair Credit Reporting Act Under the terms of the Fair Credit Reporting Act, the employer must provide an applicant with a written statement disclosing that a report may be obtained and must have written authorization and release. Before taking any adverse employment act based on a consumer report, the employer must provide a copy of the consumer report and a written description of the consumer's rights under the Fair Credit Reporting Act. After taking an adverse employment act, the employer must provide the applicant with following: EEOC report on the increase in discrimination charge filings The Equal Employment Opportunity Commission reported in a February 6, 2003 statement that discrimination charge filings were up. Charge filings alleging employment discrimination in the private sector increased to 84,442 in Fiscal Year 2002 (which ended September 30, 2002), up 4.5% from the previous year, according to new data issued today by the federal civil rights enforcement agency. Of the 84,442 charge filings with the EEOC in FY 2002, the biggest increases from the prior year were in allegations of religious discrimination (up 21%), age bias (14.5%), and national origin discrimination (up 13%). The following is the full list of discrimination charge filings (in the order of the number of filings) with the percent increase/decrease from the previous fiscal year: |
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Not only are policy forms, clauses, rules and court decisions constantly changing, but forms vary from company to company and state to state. This material is intended as a general guideline and might not apply to a specific situation. The authors, LunchTimeCE, Inc., CEfreedom, and Insurance Skills Center, and any organization for whom this course is administered will have neither liability nor responsibility to any person or entity with respect to any loss or damage alleged to be caused directly or indirectly as a result of information contained in this course.
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