EEO regulatory and Reporting

Transcription

1 EEO regulatory Compliance and Reporting DISCLAIMER: The principles and suggestions in this handout and the EEO REGULATORY COMPLIANCE AND REPORTING webinar are presented to apply to diverse personal and company situations. These materials and the overall seminar are for general informational and educational purposes only. The materials and the seminar, in general, are presented with the understanding that CareerTrack is not engaged in rendering legal advice. You should always consult an attorney with any legal issues CareerTrack, a division of PARK University Enterprises, Inc. Registered U.S. Patent & Trademark Office and Canadian Trade-Marks office. Except for the inclusion of brief quotations in a review, no part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from PARK University Enterprises, Inc.

2 ONE EEO Laws and Agencies Department of Labor (DOL) Equal Employment Opportunity Commission (EEOC) Wage and Hour Division (WHD) Title VII of the Civil Rights Act of 1964 (Title VII) Equal Pay Act of 1963 (EPA) Age Discrimination in Employment Act of 1967 (ADEA) Title I of the Americans with Disabilities Act of 1990 (ADA) Sections 501 and 505 of the Rehabilitation Act of 1973 Civil Rights Act of 1991 Pregnancy Discrimination Act of 1978 The Genetic Information Nondiscrimination Act of 2008 (GINA) National Labor Relations Board (NLRB) Fair Labor Standards act (FLSA) Minimum Wage Overtime [nonexempt and exempt] Child Labor Recordkeeping Equal Pay Family and Medical Leave Act (FMLA) Occupational Safety and Health Administration (OSHA) Occupational Safety and Health Act Whistleblower Laws See National Labor Relations Act [NLRA] 2

3 TWO Discrimination/Harassment Protected Classes Federal Laws Race and Color National Origin Sex and Pregnancy Religion and Religious Age Practices Family Medical History Disability Protected Classes Under Some State Fair Employment Practice Acts Sexual Orientation Gender Identity Marital Status Lifestyle Discrimination Things an Employer May Not Do Fail or refuse to hire because an individual is a member of a protected class. Fire an individual because s/he is a member of a protected class. Deprive an individual of employment opportunities because s/he is a member of a protected class. Fail to provide training to an individual because s/he is a member of protected class. Retaliate because an individual made a charge, testified, assisted, or participated in any manner in an action protected by law. Print or publish (or cause to be printed or published) an ad that may adversely affect a member of a protected class. Fail to post a notice about the contents of this law in an obvious place, and/or to keep it posted. Discrimination Types Disparate Treatment Disparate Impact Bona Fide Occupational Qualification (BFOQ) 3

4 THREE Defending Against a Charge of Discrimination Defensive Steps 1. Review the charge for procedural defects 2. Immediately review complainant s personnel file 3. Ensure no retaliatory action is taken 4. Conduct an investigation (gather the facts) Consider the burden of proof Disparate treatment Disparate impact 5. Evaluate the claim (determine your exposure) 6. Submit a statement of position 7. Prepare for the fact-finding or mediation conference 8. Prepare for an eeoc investigation 9. Prepare for settlement negotiations 10. Review policies and procedures 11. Determine whether further training or disciplinary action is needed 4

5 FOUR Current Trends and Topics EEOC s Final Regulations Implementing the ADAAA Easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute Interactive process WHD Enforcement Efforts Employee v. Independent Contractor Misclassification Off the clock work Exempt v. Nonexempt Misclassification 5 Employer Electronic Media Policies vs NLRB Enforcement of Sections 7 and 8, NLRA Section 7 of the NLRA basically says that employees have the right to engage in concerted activities for the purpose of mutual aid and protection. Section 8 defines employer unfair labor practices; and under it five types of conduct are made illegal: 1. Employer interference, restraint, or coercion directed against union or collective activity (Section 8(a) (1)). Threats, warnings, and orders to refrain from protected activities are forms of interference and coercion that violate Section 8(a)(1). 2. Employer domination of unions (Section 8(a)(2)). 3. Employer discrimination against employees who take part in union or collective activities (Section 8(a)(3)). Disciplinary actions, such as suspensions, discharges, transfers, and demotions, violate Section 8(a)(3). 4. Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB (Section 8(a)(4)). 5. Employer refusal to bargain in good faith with union representatives (Section 8(a)(5)). Failures to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5).

6 FIVE Persistent Issues Religious Discrimination and Accommodation Creed = Religion Religious accommodation vs ADA accommodation Age Discrimination Words and circumstantial evidence Settlement agreement requirements Sexual Harassment Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submission to such conduct is made either explicitly or implicitly a term or condition of an individual s employment, Submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual, or Such conduct has the purpose or effect of unreasonably interfering with an individual s work performance or creating an intimidating, hostile or offensive working environment. For harassment to violate Title VII, it must be sufficiently severe or pervasive to alter the conditions of [the victim s] employment and create an abusive working environment. Henson v. City of Dundee, 682 F.2d at 904 } } Quid Pro Quo Hostile Environment 6