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The EEOC dictates that employers should ensure that “prompt, thorough, and impartial” investigations are conducted when complaints are made. Impartial investigations are more readily attained by independent consultants who do not have personal or professional relationships with the complainants, witnesses, and the accused. Further, an independent consultant does not have an interest in a favorable outcome and is often perceived as detached and neutral by the employees and the EEOC. Internal personnel typically have many other duties that are extraneous to the exhaustive discrimination complaint process, and they simply need a third -party consultant to conduct investigations. Many companies do not have qualified internal human resources or legal personnel to investigate alleged civil rights violations, and those that do are typically inundated with complaints. Outsourcing to competent consultants solves both problems.
According to the EEOC guidelines, “The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts.” Objectivity is imperative to discrimination investigations, especially in harassment cases where witnesses must be asked proper questions and credibility must be weighed. Many employers and employees are concerned that internal personnel is too familiar with the employees and the complaint circumstances to be truly objective. This potential objectivity dilemma, whether actual or perceived by employees, the EEOC, or federal and state court judges, should never be applicable to independent consultants who report the facts.
The EEOC states, “Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility. “Many internal personnel may lack the necessary training and experience to adeptly investigate alleged civil rights violations or employee misconduct. Others are concerned about impartiality and objectivity. Very few from either category have the time to remain current on the continual changes in state and federal laws, which are essential to conducting quality investigations. Consequently, employers routinely outsource this specialized task to qualified consultants who conduct timely, thorough, impartial, objective, confidential, and competent investigations. Complainants may not use a complaint procedure perceived as biased, subjective and administered solely by internal personnel. In supervisor harassment cases, complainants may even attempt to defeat the affirmative defense by establishing that the employer’s reporting procedure is defective. “Negligent investigation” is becoming an increasingly popular allegation in discrimination litigation, but it is much more difficult to prove if experienced, independent consultants conduct the investigations.
The Civil Rights Act of 1866 granted citizenship and furthered rights to the newly emancipated slaves at the conclusion of the American Civil War.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or, national origin.
The Rehabilitation Act of 1973 Sections 501 and 505 prohibits employment discrimination against individuals with disabilities in the federal sector. Section 505 contains provisions governing remedies and attorney’s fees under Section 501.
The Americans with Disabilities Act (ADA) is a wide-ranging civil rights law that prohibits discrimination based on disability.
The Civil Rights Act of 1991 includes provisions meant to reduce illegal discrimination in employment decisions. Enacted November 21, 1991, the new law applies to all employers who have 15 or more employees in each of 20 or more calendar weeks per year.
According to the Family and Medical Leave Act (FMLA) of 1993, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the acceptable reasons.
The NO FEAR Act requires that Federal agencies be accountable for violations of anti-discrimination and whistleblower protection laws. This Act also requires that each Federal agency post quarterly on its public Web site certain statistical data relating to Federal sector equal employment opportunity complaints filed with such agency.
ADA Amendments Act of 2008 overturned a series of Supreme Court decisions that strictly interpreted the Americans with Disabilities Act of 1990 in a way that made it difficult to prove that an impairment is a “disability.”
Issued in 1965, Executive Order 11246 protects employees of covered Federal contractors and subcontractors from employment discrimination because of race, color, religion, sex, and national origin. The Executive Order also requires that certain employers take affirmative action to ensure that all qualified applicants and employees receive equal employment opportunities.
Executive Order 11478 of August 8, 1969, Equal employment opportunity in the Federal Government
Executive Order 13124 of June 4, 1999, Amending the Civil Service Rules Relating To Federal Employees with Psychiatric Disabilities.
Executive Order 13152 of May 2, 2000, Further Amendment to Executive Order 11478, Equal Employment Opportunity in Federal Government.
Executive Order 13164 of July 26, 2000, Requiring Federal Agencies To Establish Procedures To Facilitate the Provision of Reasonable Accommodation
Signed on January 30, 2009, Executive Order 13496 requires that Federal contractors provide notice to their employees of their rights under Federal labor laws.
Executive Order 13532 of February 26, 2010, promotes excellence, innovation, and sustainability at Historically Black Colleges and Universities.
Executive Order 13548, issued on July 26, 2010, directs Executive departments and Federal Agencies to increase their efforts to employ Federal workers with disabilities through increased recruitment, hiring, and retention of these individuals.
Executive Order 13562, issued December 30, 2010, established new pathways for students and recent graduates to enter the federal workplace through a streamlined, transparent, and more comprehensive hiring process.
Executive Order 13583, issued on August 18, 2011, to promote the Federal workplace as a model of equal opportunity, diversity, and inclusion by Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce.
Executive Order 13658, issued on February 20, 2014, to establish a minimum wage for contractors. to promote economy and efficiency in procurement by contracting with sources who adequately compensate their workers.
Management Directive 110 (EEO MD-110)
The EEOC’s Management Directive, issued October 22, 1992, outlines the Commission’s policies, procedures, and guidance relating to the processing of federal employment discrimination complaints.
Management Directive 715 (EEO MD-715)
The EEOC’s Management Directive provides policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity.
Important Supreme Court Cases
- The Supreme Court in Phillips v. Martin Marietta Corp. holds that Title VII’s prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school-age children. In practical terms, EEOC’s policy forbids employers from using one hiring policy for women with small children and a different policy for males with children of a similar age.
- In Griggs v. Duke Power Co., the Supreme Court decides that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the employer must justify the neutral rule or test by proving it is justified by business necessity. The Court reasons that Congress directed the thrust of Title VII to the consequences of employment practices, not simply the motivation. This decision paves the way for EEOC and charging parties to challenge employment practices that shut out groups if the employer cannot show the policy is justified by business necessity.
- In McDonnell Douglas Corp. v Green, the Supreme Court holds that a charging party can prove unlawful discrimination indirectly by showing, for example, in a hiring case that: (1) the charging party is a member of a Title VII protected group; (2) he or she applied and was qualified for the position sought; (3) the job was not offered to him or her; and (4) the employer continued to seek applicants with similar qualifications. If the plaintiff can prove these four elements, the employer must show a legitimate lawful reason why the individual was not hired. The employee still may prevail if he or she discredits the employer’s asserted reason for not hiring him or her.
- In Espinoza v. Farah Manufacturing Co., the Supreme Court holds that non-citizens are entitled to Title VII protection and states that a citizenship requirement may violate Title VII if it has the purpose or effect of discriminating on the basis of national origin.
- In Alexander v. Gardner-Denver Co., the Supreme Court rules that an employee who submits a discrimination claim to arbitration under a collective bargaining agreement is not precluded from suing his or her employer under Title VII. The court reasons that the right to be free of unlawful employment discrimination is a statutory right and cannot be bargained away by the union and employer.
- In Corning Glass Works v. Brennan, the Supreme Court holds that under the Equal Pay Act the allocation of proof in a pay discrimination case requires the plaintiff to prove that an employer pays an employee of one sex more than an employee of the other sex for substantially equal work.
- In Albermarle Paper Co. v. Moody, the Supreme Court decides that after a court has found an employer guilty of discrimination, the “wronged” employee is presumed to be entitled to back pay.
- In General Electric Co. v. Gilbert, the Supreme Court rules that a health insurance plan for employees providing sickness and accident benefits for any disability but those arising as a result of pregnancy did not constitute sex discrimination under Title VII, although the court acknowledged that only women can become pregnant.
- In Franks v. Bowman Transportation Co., the Supreme Court holds that Title VII requires an employer to hire a victim of unlawful discrimination with seniority starting from the date the individual was unlawfully denied the position.
- In McDonald v. Santa Fe Transportation Co., the Supreme Court holds that Title VII prohibits racial discrimination against whites as well as blacks.
- In International Brotherhood of Teamsters v. United States, the Supreme Court rules that in a pattern or practice discrimination case, once the plaintiff proves that the defendant systematically discriminated, all the affected class members are presumed to be entitled to relief (such as back pay, jobs) unless the defendant proves that the individuals were not the victims of the defendant’s pattern or practice of discrimination.
- In Hazelwood School District v. U.S., the Supreme Court rules that a plaintiff can establish a prima facie case of class hiring discrimination through the presentation of statistical evidence by comparing the racial composition of an employer’s workforce with the racial composition of the relevant labor market. The court explains that absent discrimination, an employer’s workforce should reflect the composition of the employer’s applicant pool.
- The Supreme Court in Trans World Airlines, Inc. v. Hardison decides its first Title VII religious discrimination case. The Court states that under Title VII employers must reasonably accommodate an employee’s religious needs unless to do so would create an undue hardship for the employer. The Court defines hardship as anything more than the minimum cost.
- In Occidental Life Insurance Co. v. EEOC, the Supreme Court addresses many of the procedural arguments advanced by employers which have prevented EEOC’s lawsuits from going forward. The Court holds that EEOC lawsuits do not have to be filed in court within 180 days after the filing of a charge and that EEOC lawsuits are not subject to state statutes of limitation.
- In Los Angeles Department of Water and Power v. Manhart, the Supreme Court rules that an employer may not use the fact that women as a group live longer than men to justify a policy of requiring women employees to make larger contributions than men to a pension plan to receive the same monthly pension benefits when they retire.
- In United Steel Workers of America v. Weber, the Supreme Court holds that private sector employers and unions may lawfully implement voluntary affirmative action plans to remedy past discrimination. The Court holds that an employer and union do not violate a collectively bargained plan by reserving 50 percent of the slots in a training program in a traditionally segregated industry for black employees. The program is lawful because it does not “unnecessarily trammel the interests of white employees,” does not “create an absolute bar to the advancement of white employees,” and is “a temporary measure . . . not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.”
- In General Telephone Company of the Northwest v. EEOC, the Supreme Court upholds EEOC’s authority to seek class wide relief for victims of discrimination, without being restricted by the class action rules applicable to private litigants. The Court emphasizes that when EEOC files suit, it acts to vindicate the “overriding public interest in equal employment opportunity.”
- In County of Washington v. Gunther, the Supreme Court holds that the Bennett Amendment, which incorporates the four affirmative defenses of the Equal Pay Act (EPA) into Title VII, does not limit Title VII pay discrimination claims to EPA claims. Title VII wage claims can be broader than EPA claims because Title VII, unlike the EPA, is “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
- In Connecticut v. Teal, the Supreme Court holds that an employer is liable for racial discrimination when any part of its selection process, such as an invalidated examination or test, has a disparate impact even if the final result of the hiring process is racially balanced. In effect, the Court rejects the “bottom line defense” and makes clear that the fair employment laws protect the individual. The Teal decision means that fair treatment of a group is not a defense to an individual claim of discrimination.
- The Supreme Court in Zipes v. Trans World Airlines, clarifies the requirements for filing a private lawsuit under Title VII. The Court explains that the timely filing of a charge is not a jurisdictional requirement but like a statute of limitations and therefore is subject to equitable tolling and waivers.
- The Supreme Court in EEOC v. Wyoming upholds the constitutionality of the Age Discrimination in Employment Act as it applies to state and local governments. The Court rules that state and local governments — one of the fastest growing employment sectors — cannot discriminate against employees and job applicants on the basis of their age.
- In EEOC v. Shell Oil Co., the Supreme Court affirms the authority of EEOC’s Commissioners to initiate charges of discrimination through “Commissioners Charges.”
- In Meritor Savings Bank v. Vinson, the Supreme Court for the first time recognizes that sexual harassment is a violation of Title VII. The Court in formulating its opinion, favorably cites EEOC’s policy guidance on sexual harassment.
- In Johnson v. Transportation Agency, Santa Clara County, the Supreme Court explains the requirements for a lawful voluntary affirmative action plan. The Court explains that in order for an affirmative action plan to be valid, an employer must show a conspicuous under representation of minorities or women in traditionally segregated job categories and that the plan does not unnecessarily restrict the rights of male or non-minority employees, or create an absolute barrier to their advancement.
- The Supreme Court in EEOC v. Commercial Office Products, clarifies the relationship between EEOC and state and local Fair Employment Practice Agencies (FEPAs). The Court holds that a FEPA’s decision to waive Title VII’s 60-day deferral period pursuant to a work-sharing agreement “terminates” state proceedings and permits EEOC immediately to deem the charge filed and begin processing. The Court also rules that a charging party who files a charge that is untimely under state law is nonetheless entitled to Title VII’s longer 300 day federal filing period rather than the 180 day period.
- The Supreme Court in Watson v. Fort Worth Bank & Trust, in a unanimous opinion, declares that the disparate impact analysis can be applied to subjective or discretionary selection practices. In the past, the Court had applied disparate impact only to tests and other presumptive objective practices.
- The Supreme Court in Price Waterhouse v. Hopkins establishes how to analyze an employer’s actions when the employer has mixed motivations for the employment decision, i.e., the employer was motivated by a legitimate reason and also by an unlawful reason such as unlawful race or sex bias. The Court holds that if a plaintiff shows that discrimination played a motivating part in an employment decision, the employer can attempt to prove, as a complete affirmative defense, that it would have made the same employment decision even if discrimination were not a factor.
- In Wards Cove Packing Co. v. Antonio, the Supreme Court rules that when a plaintiff makes a showing of a disparate impact violation of Title VII, he must do so by demonstrating that specific practices (and not the cumulative effect of the employer’s selection practices) adversely affected a protected group. Further, the Court holds that when a showing of disparate impact is made, the employer only has to produce evidence of a business justification for the practice, and that the burden of proof always remains with the employee.
- In Public Employees Retirement System of Ohio v. Betts, the Supreme Court rejects EEOC’s position that a benefit plan that denied disability benefits to employees over the age of 60 at the time of retirement violates the Age Discrimination in Employment Act (ADEA). Instead, the Supreme Court rules that the ADEA does not prohibit discrimination in employment benefit plans, as long as the benefit plan is not a means to discriminate in some “non-fringe” benefit aspect of employment. In short, the Court holds that the ADEA’s prohibition against age discrimination does not apply to employee fringe benefits in most circumstances.
- The Supreme Court in Lorance v. AT&T Technologies decides when a charging party must file a discrimination charge if the charging party is challenging a seniority system neutral (and non-discriminatory) on its face. The Court holds that the time in which a facially neutral seniority system can be challenged runs from the adoption of the alleged discriminatory system. The Court rejects EEOC’s position that the limitations period begins to run only when the employee is adversely affected by the seniority system. Lorrance is the first EEOC case in which the agency’s General Counsel, Charles Shanor, is permitted to argue in the United States Supreme Court.
- The Supreme Court decides International Union, UAW v. Johnson Controls and addresses the issue of fetal hazards. In this case, the employer barred women of childbearing age from certain jobs due to potential harm that could occur to a fetus. The Court rules that the employer’s restriction against fertile women performing “dangerous jobs” constitutes sex discrimination under Title VII. The Court further rules that the employer’s fetal protection policy could be justified only if being able to bear children was a bona fide occupational qualification (BFOQ) for the job. The fact that the job posed risk to fertile women does not justify barring all fertile women from the position.
- The Supreme Court in Gilmer v. Interstate/Johnson Lane rules that an individual who has signed an agreement to arbitrate employment disputes with his or her employer cannot proceed with an Age Discrimination in Employment Act (ADEA) lawsuit in court but must instead submit the dispute to an arbitrator. This decision differs from the Court’s earlier decision in Alexander v. Gardner-Denver, where the court held that an employee could proceed with a Title VII lawsuit even though the union which he belonged to had agreed in a collective bargaining agreement to submit discrimination disputes to arbitration.
- In St. Mary’s Honor Center v. Hicks, the Supreme Court rules that the plaintiff in an employment discrimination case is not entitled to automatically win even if he establishes a prima facie case of discrimination and demonstrates that all of the reasons advanced by the employer for the “challenged action” are false. The Supreme Court’s decision means that even if the plaintiff can prove the employer’s asserted defense is pretextual, than a finding of unlawful discrimination is not mandatory. A fact finder may still conclude that the employer’s action is not discriminatory. The Commission had filed a brief as amicus curiae arguing, unsuccessfully, that prior Supreme Court cases established that once the plaintiff had shown that all of the employers reasons for the adverse employment actions are pretextual, then the plaintiff should automatically win.
- In Harris v. Forklift Systems, Inc., the Supreme Court rules that in a sexual harassment case, the plaintiff does not have to prove concrete psychological harm to establish a Title VII violation.
- A unanimous Supreme Court in McKennon v. Nashville Banner Publishing Co., rejects the so called “after acquired evidence” doctrine applied by lower courts to bar a plaintiff from proving unlawful discrimination. Under the doctrine, employers after firing an employee or taking other adverse action, justify their actions by relying on evidence uncovered after the employee’s termination which would have justified the termination. The Supreme Court rules that in such cases, the employer is still liable for having violated an anti-discrimination law but that the employee is not entitled to reinstatement or to back pay for the period after the employer learns of the misconduct.
- The Supreme Court in O’Connor v. Consolidated Coin Caterers Corp. rules that to show unlawful discrimination under the Age Discrimination in Employment Act, a discharged plaintiff does not have to show that he or she was replaced by someone outside the protected age group (that is under age 40).
- A unanimous Supreme Court in Robinson v. Shell Oil, adopts EEOC’s position (advanced as amicus curiae) that the Title VII prohibition against retaliation protects former as well as current employees.
- The Supreme Court in Walters and EEOC v. Metropolitan Educational Enterprises approves EEOC’s “payroll method” of counting employees to determine if an employer has the requisite number of employees to be subject to Title VII coverage.
- The Supreme Court decides Bragdon v. Abbott, a Title III (public accommodations) Americans with Disabilities Act (ADA) case. The Court holds that an individual with asymptomatic HIV is an individual with a disability and therefore is protected by the ADA. Significantly, the Court finds that reproduction is a major life activity under the statute.
- The Supreme Court, in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, spells out the circumstances in which employers will be held liable for acts of sexual harassment carried out by their supervisory personnel. The Court rules that employers are liable when the sexual harassment has culminated in a tangible employment action directed against the harassed employee (i.e., employee is terminated or demoted after rejecting a supervisor’s sexual advance). The Court further rules that employers are permitted to establish an affirmative defense to the claim, if it can show no tangible action was taken against the harassed employee and two additional elements: (1) the employer had communicated and established an effective procedure for employees to seek redress from sexual harassment; and (2) the harassed employee failed to take advantage of this procedure. If an employer can show all of these elements, then it will not be held responsible for the sexual harassment by its supervisory personnel.
- A unanimous Supreme Court rules in Oncale v. Sundowner Offshore Services that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court reiterates that the plaintiff must prove that there was discrimination because of sex and that the harassment was severe.
- In Wright v. Universal Maritime Service Corp., the Supreme Court revisits the issue of whether a collective bargaining agreement providing for the mandatory arbitration of discrimination claims can bar individual charging parties from pursuing their EEO claims in federal court. The Supreme Court decides that the collective bargaining agreement at issue did not contain a clear and unmistakable waiver and therefore the charging party could pursue his employment discrimination claim in court.
- In the cases of Sutton v. United Airlines, Inc. and Murphy v. United Parcel Service, the Supreme Court holds that the question of an individual’s disability requires evaluation of his or her impairment in its “mitigated” or corrected state. To be protected by the Americans with Disabilities Act (ADA), the individual must show that he or she is substantially limited in performing a major life activity even with the use of medications or assistive devices. As a practical matter, this means that individuals taking medications to offset the effects of a condition like diabetes or epilepsy may not be able to secure ADA protection if they cannot show that they were substantially impaired while in a mitigated state.
- In Cleveland v. Policy Management Systems Corp., the Supreme Court agrees with EEOC’s position that a plaintiff can go forward with his or her Americans with Disabilities Act case despite having filed an earlier claim for disability under the Social Security Act alleging he or she is unable to work.
- In Gibson v. West, the Supreme Court endorses EEOC’s position that it has the legal authority to require that federal agencies pay compensatory damages when EEOC has ruled during the administrative process that the federal agency has unlawfully discriminated in violation of Title VII.
- In Mach Mining, LLC v. EEOC, the Supreme Court rules before suing an employer for employment discrimination under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC or Commission) must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”
- In EEOC v. Abercrombie & Fitch Stores, Inc. , the Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Tenth Circuit. The Supreme Court held that to prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e-2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e-2(m). Thus, rather than imposing a knowledge standard, §2000e-2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.