Below are some of the most frequently asked questions clients have about “EEO” issues. If you have any other questions, or would like to schedule an appointment, we would love to hear from you.
Q: Should we consider mediation as an alternative to the traditional investigative process with EEOC?
Mediation has been a successful and effective way of resolving charges of discrimination within professional organizations. The mediation process allows both parties the ability to address the allegations openly. When deciding whether or not to use mediation, consider that all proceedings are voluntary and confidential. Parties also have an equal say in the mediation process as well as the settlement terms. If resolution is negotiated, then the charge is dismissed. If mediation proves unsuccessful, the charge will be investigated. Mediation allows charges to potentially be handled out of the legal system.
Q: Is the employer liable for the improper actions of harassment by a supervisor?
There is automatic liability for harassment by a supervisor when the behavior results in a negative employment action (loss of wages, hours, opportunities, failure to hire or promote, or termination) against the impacted employee/applicant. If the harassment results in a hostile work environment, strict liability can be avoided if the employer can demonstrate that it exercised care and acted reasonably to prevent (by disseminating the company policy and conducting training) and correct (through a prompt investigation) the harassing behavior. The employer must also prove that the employee failed to take advantage of opportunities to prevent or avoid harassment as required by the company policy.
Q: How can we prevent a retaliation charge?
In order to prevent a retaliation charge, ensure that your staff, supervisors, and managers are educated. Ensure that they understand that they cannot take an adverse action against an employee after he or she has filed a complaint.
Q: Do the use of employment tests during the selection process to screen applicants for hire and employees for promotion create a liability?
Potentially, yes. The use of tests can be an effective means of determining the best qualified candidate for a particular job. These tests may include cognitive tests, physical tests, job task tests, English proficiency tests, personality tests, medical examinations, credit checks, and criminal background checks. Employers need to beware that tests may discriminate based on race, color, sex, national origin, religion, age, disability or any other characteristic protected by law violate federal and state anti-discrimination laws if they disproportionately exclude people in a particular protected group. With respect to scoring tests, Title VII says that employers are not permitted to: (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. Title VII also prohibits employers from using neutral tests that have the effect of disproportionately excluding persons based on a protected characteristics, where the tests or selection procedures are not “job-related and consistent with business necessity”.
In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures to assist employers to determine if their tests and selection procedures were lawful. These methods of demonstrating job-relatedness are called “test validation.” Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are being used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its test are valid under UGESP.
Q: What is the ADAAA?
The ADAAA is the Americans with Disabilities Act Amendment Act of 2008. Even though the Act does not change the definition of a disability it changes the way it should be interpreted.
Q: Can someone be harassed by someone of the same sex?
It is possible to have a claim for male on male or female on female harassment. Neither the sexual orientation of either the harasser or the victim nor the intent of the harasser is irrelevant as harassment is not always motivated by sexual desire.
Q: With respect to retaliation, what is protected conduct?
Protected conduct includes any behavior or activity relating to the opposition or prevention to remedy discrimination. Examples include: filing a grievance, complaint, or formal charge of discrimination; complaining about, opposing or protesting either perceived or alleged discrimination against oneself or another employee; helping another employee in opposing discrimination; giving evidence or testimony to someone investigating an allegation of discrimination; refusing to engage in conduct that is believed to be discriminatory or unlawful; and refusing to help an employer in discriminating; requesting or taking medical leave (under FMLA) or protesting an employer’s refusal to allow the employee to take leave.
Q: What is GINA?
GINA is the Genetic Information Nondiscrimination Act of 2008. Title II of GINA, which took effect on November 21, 2009, prohibits genetic information discrimination in employment.
Q: What specifically is prohibited in GINA with regard to genetic information discrimination?
GINA prohibits the use of genetic information in making employment decisions, restricts the acquisition of genetic information, and limits the disclosure of genetic information. This means that an employer may not disclose genetic information about applicants or employees and must keep all information confidential. Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
Q: What is genetic information?
Genetic information is any information about an individual’s genetic tests or information about a disease, disorder, or condition, including medical history about the individual or individual’s family member.
Q: What are the rights of an employee in the reserves?
Reservists are protected from discrimination of any kind, as it relates to the employee’s military service, by the Uniformed Services Employment and Re-Employment Rights Act (USERRA). A reservist who is called to duty must provide you with advance notice of their orders, either in writing or verbally, unless it is military necessity and requires immediate deployment. Your company can request that the reservist’s duty be deferred but the military authorities will have the final decision. Upon return from service, you must reinstate the reservist’s employment. Questions pertaining to reservist’s rights can be posed to the National Committee for Employee Support of the Guard and Reserve (ESGR) at (800) 36-4590 or www.esgr.org.