Editor's note: Katie Clarey is one year into covering HR and continues to educate herself and readers on the building blocks of the field with her series, Back to Basics. If you're new to HR (or just need a little refresher), follow along as she speaks with experts and lays out the basics of federal employment law. She can be reached at [email protected]
Inside every bodega, wedding boutique, automobile factory, there hangs a poster proclaiming that "equal employment opportunity is the law." If it's not there, it should be. Why? It's a requirement of the U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces federal anti-discrimination laws.
The EEOC obligates businesses to do much more than print and hang a poster where employees and applicants will see it, according to Mindy Weinstein, acting director of EEOC's Washington Field Office. The EEOC enforces seven federal laws, or at least their employment-relevant sections. It accepts, investigates, mediates and litigates charges of discrimination. It educates both employers and employees on their rights and responsibilities under Equal Employment Opportunity (EEO) laws — which make it illegal to discriminate against applicants or employees on the basis of religion, race, color, sex (including pregnancy, gender identity and sexual orientation), national origin, age (40 or older), disability or genetic information.
"The EEOC is there for the United States, for the country," EEOC Associate Legal Counsel Carol Miaskoff told HR Dive in an interview. "What we are about is reducing and stopping discrimination."
For employers to stay compliant with the laws EEOC enforces, they need to take a preventative stance, Miaskoff said. In order to do that effectively, they will want to familiarize themselves with the EEOC, its requirements and its resources.
EEOC: "A child of the civil rights movement"
The EEOC began operating on July 2, 1965, but its creation came exactly one year earlier. On July 2, 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964, which established "a commission on Equal Employment Opportunity" in the section dealing with employment, Title VII. The historical context of the law's passing makes the agency "a child of the civil rights movement," Miaskoff said.
It may not come as a surprise, given its origins, that the EEOC continues to find much of its purpose in Title VII.
"The heart of our role is to enforce Title VII of the Civil Rights Act of 1964," Miaskoff said. "I say it's the heart of our role because it's Title VII and the Civil Rights Act that established the basic construct that's used in the other laws as models for how federal law prohibits employment discrimination and enforces those laws."
The EEOC's operations center on its chief responsibility: enforcing Title VII and six other federal anti-discrimination laws. In addition to its activity with discrimination charges, it also provides information to stakeholders through outreach work, as well, to ensure all parties understand their rights and responsibilities, Weinstein said.
The life cycle of a discrimination charge
A discrimination charge begins earlier than the charge itself, Weinstein said.
Workers can contact the EEOC if they believe they have been discriminated against, Weinstein said. The agency counsels individuals who contact them — which workers can do online, on the phone or by coming into one of its offices — to inform them of the process a charge entails. After that, workers can begin to file a charge. In general, workers must file a charge within 180 calendar days of when the discrimination occurred.
If, after speaking with a worker, it appears unlikely that an employer violated the EEOC's laws, the agency informs the charging party of its conclusion and gives the individual a chance to provide more evidence. The EEOC will close its investigation into a charge and notify the individual if it concludes that the charge is untimely, that its laws do not apply to the charge or that it cannot determine if one of its laws was violated, according to its website. It's worth noting that a different complaint process exists for federal employees and applicants.
Once the agency receives a charge, it electronically serves the charge to the employer within 10 days of the filing, Weinstein said. "In most cases, we invite the parties to participate in our alternative dispute resolution process," she said. "Where both parties are amenable, we are able to try to work it out."
If the parties do not resolve to mediate, the EEOC will begin its investigation. The EEOC may ask the organization named in the charge to "tell its side of the story" in a statement of position, according to the agency's website. The EEOC also may ask it to respond to a request for information, agree to an on-site visit or either provide contact information for or make employees available who can provide witness interviews. Organizations can opt to settle at any point during the investigation, according to the EEOC.
When the EEOC concludes that someone did break the law, it submits its assessment to the employer, notifies the parties of its determination and begins the conciliation process, which is an effort to resolve the issues of the case. This process, Weinstein said, aims to provide monetary relief to the victim and to remedy the violation in order to prevent future violations.
If those attempts are unsuccessful, the EEOC's legal unit may decide to pursue the case in litigation, Weinstein said. If conciliation does not succeed and the EEOC decides against litigation, it will administer the charging party a Notice of Right to Sue, which allows the individual to file a lawsuit in federal court within 90 days.
The EEOC's laws, from Title VII to GINA
The EEOC enforces seven federal laws, each, among other things, prohibiting employers from committing some specific type of discrimination.
Title VII of the Civil Rights Act of 1964
Title VII prohibits employers from discriminating on the basis of race, sex, national origin, color and religion. It applies to employers with 15 or more employees.
The Pregnancy Discrimination Act (PDA): The PDA is an amendment to the definition of sex under Title VII, Miaskoff said. "It says basically that sex includes pregnancy and related conditions."
The Equal Pay Act of 1963 (EPA)
The EPA predates the Civil Rights Act by one year. It prohibits employers from paying different wages to men and women if they perform equal work in the same workplace.
The Americans with Disabilities Act (ADA)
Title I of the ADA prohibits employers from discriminating on the basis of disability. This also generally requires employers to provide workers and applicants with reasonable accommodations.
Sections 501 and 505 of the Rehabilitation Act of 1973
This law prohibits employers from discriminating against "a qualified person with a disability in the federal government," according to the EEOC.
The Age Discrimination in Employment Act (ADEA)
The ADEA was passed in 1967 and it prohibits employment discrimination of employees age 40 and older. It only prohibits employment discrimination based on older age, Miaskoff noted.
The Genetic Information Nondiscrimination Act (GINA)
Passed in 2008, GINA disallows employers from discriminating against employees based on their genetic information.
Sections 102 and 103 of the Civil Rights Act of 1991
This law amended Title VII and the ADA to allow for jury trials and compensatory and punitive damages when intentional discrimination is found, among other things.
Best practices for EEOC compliance
Study up and use the EEOC's resources
Many HR professionals are overwhelmed by their to-do lists and "may not be aware of some of the basics" of employment law, Miaskoff said. HR professionals and managers shouldn't feel that they have to obtain a law degree in order to do their jobs well, however.
The EEOC provides "straightforward materials" on its website that employers can look to for educational purposes. "Look at that stuff," Miaskoff said. "Print it out." She suggested using the materials when onboarding and training employees. "The best thing anyone can do is for the HR people to get a basic familiarity and to use the resources there and try to communicate it to their workforce," Miaskoff said.
Most employment laws prohibit employers from retaliating against employees. When an employee accuses a colleague of discrimination, HR must respond immediately, according to Miaskoff. The first person to contact? The accused. "Get with that person," she said. "Talk to them. Let them vent." After that, the employer must follow through with an objective investigation.
Furthermore, HR must insist that everyone in the company — including the executives — follow the rules. "You really have to walk the walk, in that the boss has to be subject to the same standards as the lay person," Miaskoff said. "If that's not the case, no one's going to respect the rules. That's louder than any training or poster. If the boss gets away with it, no one's going to pay any attention."
It's important employers consider participating in mediation when named in an EEOC discrimination charge, Weinstein said. "The employers who do participate are very happy that they did," she said. "I sense that some employers that haven't done it before may be reluctant because they fear that settling something means they did something wrong." This is a misconception, Weinstein said.
In reality, mediation offers employers and employees a valuable opportunity, Weinstein said. "It really allows the parties to resolve the case early because we typically invite immediately after the charge is filed," she said. "It's a good way to try to resolve a problem before it goes on and on."
Employers may fear that mediation may result in costly settlements. "That's often not the case," Weinstein said. "We have some mediations that resolve in no money at all or less than $1,000."