The Essentials of EEO and Affirmative Action Compliance 08-05-10

1. – KPA CONFIDENTIAL –
The Essentials of EEO and
Affirmative Action Compliance
August 5, 2010

2. Questions
• If you have questions
during the presentation,
please submit them using
the “Questions” feature
• Questions will be
answered at the end of the
webinar

3. What is Discrimination?
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Discrimination refers to any instance of treating
someone in a less favorable manner on the basis of
that person's characteristics.
The legal definition of discrimination, however, is
narrower. Under the law, only certain behaviors are
considered discrimination and only certain classes
(protected classes) or types of discrimination are
illegal.
Unlawful discrimination occurs when a person is
harassed or treated arbitrarily or differently because
of their membership in a "protected class." A
protected class is a group of people who share
common characteristics and are protected from
discrimination and harassment by federal, state,
and/or local laws.

4. Discrimination Is NOT…
• Personality differences or conflicts
• General treatment not based on the
inclusion in a protected class
• Adverse employment decisions not
based on inclusion in a protected
class
• Response to poor performance
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5. Adverse Employment Action
• Adverse employment action is behavior by
an employer that hurts an employee
• Adverse employment action is illegal if the
decision is based on inclusion in a
protected class
• Examples of adverse employment action
include: terminating the employee or not
selecting him or her for a promotion,
harassing the employee, denying the
employee's request for a reasonable
accommodation
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6. Protected Classes
• Race
• Color
• Gender (including sexual harassment)
• Religion
• Ancestry
• National Origin
• Marital Status
• Age
• Sexual Orientation
• Disability Status (actual, regarded as having, and/or record
of having a disability)
• Veteran Status
A protected class is a group of people who share common
characteristics and are protected from discrimination and
harassment by federal, state, and/or local laws.
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7. Employers and the Law
• The U.S. Equal Employment Opportunity
Commission (EEOC) enforces the most significant
("landmark") Federal discrimination laws related to
employment
• States are permitted to enact and enforce their
own employment discrimination laws that include
or expand the minimum protections afforded by
the Federal laws
• Some states refer to discrimination laws as fair
employment practices (FEP) laws. A good
resources for state FEP law is found at
http://employeeissues.com/state_labor_laws.htm
or by checking with the individual state’s
Department of Labor or EEOC
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8. “Landmark Laws”
• Civil Rights Act of 1964
Title VII of this Act is "the" landmark, Federal employment
discrimination law. It prohibits discrimination in any aspect of
employment on the basis of race, color, religion, national origin or
sex (gender). (See also Sexual Harassment in the Workplace
below.) This Act also established the U.S. Equal Employment
Opportunity Commission (EEOC)
• Civil Rights Act of 1991
Amends the Civil Rights Act of 1964 to strengthen and improve
Federal civil rights laws, provide for damages in cases of
intentional employment discrimination, clarify provisions regarding
disparate impact actions, and for other purposes
• Older Workers Benefit Protection Act of 1990
OWBPA amended the Age Discrimination in Employment Act of
1967 (above), by clarifying protections for workers of age 40 and
older regarding employee benefit plans
• Affirmative Action under Title VII
Title 29, Chapter XIV, Part 1608 is a labor law enforced by the Equal
Employment Opportunity Commission, that establishes guidelines
for developing appropriate affirmative action programs under Title
VII of the Civil Rights Act of 1964
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9. “Landmark Laws”
• Age Discrimination in Employment Act of 1967prohibits age
discrimination in any aspect of employment against individuals
who are 40 years old or older. Amended by the Older Workers
Benefit Protection Act of 1990 (below), which makes it unlawful to
discriminate on the basis of age against individuals who are 40 or
older, for employment benefit programs
• Equal Pay Act of 1963disallows wage discrimination based on
gender for all jobs that require equal skill, effort and responsibility
under similar working conditions at the same employer. Part of the
Fair Labor Standards Act.
• Older Workers Benefit Protection Act of 1990
OWBPA amended the Age Discrimination in Employment Act of
1967 (above), by clarifying protections for workers of age 40 and
older regarding employee benefit plans.
• Pregnancy Discrimination Act of 1978
Another of the landmark, Federal discrimination laws protecting
employment, it prohibits sex discrimination on the basis of
pregnancy and childbirth, and related medical conditions. An
amendment to the Civil Rights Act of 1964 listed above.
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10. “Landmark Laws
• Americans with Disabilities Act of 1990
The ADA too is considered to be among the
landmark, Federal employment discrimination
laws. It prohibits discrimination in any aspect of
employment against qualified disabled individuals,
because of their disabilities. Requires employers
to provide reasonable accommodations for
disabled workers. Effective January 1, 2009, the
ADA was strengthened by the Americans with
Disabilities Act Amendments Act of 2008 (ADAA or
ADA Amendments Act for short) to better protect
disabled workers from employment discrimination)
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11. Other Laws
• Genetic Information Nondiscrimination Act
of 2008
GINA prohibits genetic discrimination in
employment and health insurance
• Lilly Ledbetter Fair Pay Act of 2009
Changed the statue of limitations for filing
a wage discrimination charge with the
EEOC, from 180 days after the first incident
of wage discrimination to 180 days after
each incident (or 300 days after each
incident if a state law comes into play)
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12. Other Laws
• Bankruptcy Act has employment-related provisions make it
unlawful for employers to discriminate against employees
and job applicants because of bankruptcy or the bad debts
they had before filing for bankruptcy
• Immigration Reform and Control Act of 1986
While not a Federal employment discrimination law per se it
amends the Immigration and Nationality Act to prohibit
employment discrimination against individuals other than
illegal aliens, based on citizenship status or national origin
• Uniformed Services Employment and Reemployment Rights
Act
Includes provisions that protect the jobs and employer-
provided benefits of service members returning to the
civilian workforce, along with provisions that prohibit job
discrimination against veterans on the basis of their military
service
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13. Sexual Harassment
• There is no standalone, Federal
employment discrimination law that
prohibits sexual harassment in the
workplace
• Rather sexual harassment in the
workplace is a form of sex discrimination
that is prohibited under the Civil Rights Act
of 1964
• Many states have their own workplace
sexual harassment law that includes or
expands the minimum Federal protections
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14. Best Practices to Prevent Discrimination
• Education and Training
– Manager and Supervisor Specific Training
• No- Tolerance Policies on Discrimination and Harassment
– Hiring
– Retention
– Promotion
• Reporting /Non Retaliation
• Standardize Processes for Hiring, Discipline/Retention,
Promotion and Retention
Documentation is critical!
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15. Reasonable Accommodation and the ADA
Employers must make reasonable accommodations for
qualified individuals unless the employer can show undue
hardship
• What is a reasonable accommodation?
– Making existing employee facilities accessible to individuals with
disabilities
– Job Restructuring
– Part-time or Modified Work Hours
– Acquisition or Modification of Equipment
– Modifications in Exams, Training, Material or Polices
– Provision of qualified readers or interpreters
– Reassignment to a vacant position
• What is Undue Hardship?
– Significant difficulty or expense
– Takes into consideration the circumstances of the individual
employer
– Must be assesses on a case by case basis
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16. Reasonable Accommodations and the ADA
• What are essential functions?
– Position exists to perform a specific function
– Number of employees available to perform function- if only a
few then the function is essential
– Degree of skills or expertise
• What documentation is required to validate essential
functions?
– Job description
– Amount of time spent on the job performing the essential
function
– Consequence of not requiring the individual to perform the
function
– Any collective bargaining agreements
– Work experience of past or current incumbents in position
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17. Reasonable Accommodation and the ADA
• 5 steps to determine reasonable
accommodation
– Analysis the job (job description) to confirm
essential functions
– Consult with the individual to understand the
precise limitations
– Indentify possible accommodations
– Consider the preferences of the individual
– Select and implement the accommodation(s)
that are most reasonable for individual and
employers
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18. Reasonable Accommodations and the ADA
• What does an employer NOT have to do?
– Eliminate an essential function of the job
– Lower production standards
– Create a new job
– Provide personal use items (if also needed off
the job)
– Provide personal use amenities (hotplate,
refrigerator) if not provided to other employees
– Take on costs that would pose an undue
hardship to the business
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19. Religious Accommodations
• Employers may not exclude an applicant from hire
or fail to promote or retain an employee because
they may need a reasonable accommodation for
religious belief, practice or observance (Title VII)
• The employer does not have to provide
accommodation that would cause undue hardship
but should seek to be as flexible as possible
• Title VII defines undue hardship as more than “de
minimis” cost or burden- this is a lower standard
than the ADA imposes
• Factors to determine cost or burden include type
of workplace, nature of the duties, cost of the
accommodation, size of employer and number of
employees who may need the accommodation
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20. Religious Accommodations
• What are the most common methods of
accommodations?
– Changes in schedule, voluntary substitutes, shift swaps
– Changes in duties or providing a lateral transfer
– Making and exception in dress or grooming rules
• Case by case determination of true business necessity
• Reliance on “customer preference” or “image” is risky
– Use of the work facility for religious observance
– Payment of union fees or agent fees to a charity of choice
– Accommodation of prayer, proselytizing or religious
expression
• Not required is the expression could be perceived as the
message of the employer or could be considered
harassment
• Not required if disruptive to workplace or if other
employees complain
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21. Equal Opportunity Employment vs.
Affirmative Action
• Equal Opportunity for employment and non
discrimination in the workplace is required for all
employers, public or private
• EEOC-1 Reporting is required for all employers
with more than 100 employees
• Affirmative Action Program are required for federal
contractors and subcontractors and for some state
contractors and subcontractors
• Affirmative Action is the set of public policies and
initiatives designed to help eliminate past and
present discrimination based on race, color,
religion, sex, national origin, disability or veteran
status
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22. Advanced EEO and Affirmative Action
Compliance
Join us again on August 19th to learn:
• How to respond to employment
discrimination charges filed with the EEOC
and FEP agencies
• EEO-1 Reporting Requirements
• Overview of Affirmative Action plans
including an explanation of the legal
obligations and the required components
of an affirmative action plan
• OFCCP Compliance for federal contractors
and subcontractors
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23. Questions and Answers
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QUESTIONS?

24. Contact Information
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The recorded webinar and presentation slides will be emailed to
you today including your local representative’s contact information.
www.kpaonline.com
kcarlson@kpaonline.com
866-228-6587