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Non-Discrimination Policies: Appendix

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THE CIVIL RIGHTS ACT OF 1964

The Equal Employment Opportunity Commission (EEOC) is charged with administering Title VII of the Civil Rights Act of 1964. Title VII makes it unlawful for an employer to discriminate in hiring, firing, compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin. It also forbids employers to limit, segregate, or classify employees in a way that deprives any individual of employment opportunities or adversely affects employment status because of race, color, religion, sex, or national origin.

In addition, it is unlawful to discriminate on any of these five bases in apprenticeship, training, or retraining programs. It also is illegal to indicate preference or discrimination based on race, color, religion, sex, or national origin in advertisements relating to employment.

Exceptions

An exception to the prohibitions allows wage discrimination when based on merit, seniority, and quantity or quality of production.

The law also makes exceptions for discrimination resulting from a bona fide occupational qualification. Such exception, however, is applicable only to discrimination based on religion, sex, or national origin. Title VII does not recognize occupational qualification based on race or color as bona fide.

RECRUITING AND HIRING

A procedure for recruiting and selecting employees that does not intentionally or inadvertently screen out minority group members is essential. An employer is not required to hire a designated quota of minority group members.

Prior Hiring Practices

EEOC has taken the position that an employer with a disproportionately low number of minority group members in the work force probably has acquired a reputation as a discriminatory employer. In such a case, announcing a policy of equal employment opportunity might not be regarded as enough to offset the past reputation.

Also, an employer with good minority representation among service workers is not necessarily in the clear. A disproportionately low number of minority group members in white-collar, professional, or supervisory jobs suggests that special recruiting efforts are needed in these areas.

Hiring Standards

Affirmative recruiting efforts that substantially increase the flow of minority group applicants will not satisfy the law if, because of unreasonable standards for hire, few of these applicants are employed.

Employers must be prepared to demonstrate that their hiring standards do not automatically screen out applicants whose speech, dress, and personal work habits differ from those of the predominant group.

The U.S. Supreme Court has ruled that an employer who uses employment tests or other job screening standards, such as possession of a high school diploma, must be able to demonstrate that such criteria are reasonable measures of job performance.

A hiring policy may be objectively and fairly applied to all applicants, yet still discriminate against one group and so be ruled discriminatory under Title VII. For example:

Height Requirements

EEOC has held that an employer's rigid adherence to a height requirement for hiring purposes in positions where height is not directly related to performance can discriminate against certain groups whose members consistently fall below such a standard, such as women.

Appearance, Manner of Speech--Rejection of a job applicant because of appearance and manner of speaking may be unlawful if the appearance and manner of speaking are distinctive to race or national origin.

EMPLOYMENT CONDITIONS

The law against employment discrimination extends to virtually every aspect of the employer-employee relationship including discrimination with respect to compensation, terms, conditions, or privileges of employment.

Wages

Discrimination with respect to compensation covers a variety of practices, such as:

  • starting rates or merit increases based on race, sex, religion, or national origin rather than qualifications or performance, and
  • different treatment of employees with respect to overtime pay opportunities when based on race, sex, religion, or national origin.

Training and Promotion

Employees of similar capabilities must be offered the same opportunities for training, promotion, transfer, and apprenticeship programs.

Discriminatory Environment

Title VII requires an employer to maintain a working environment free of racial intimidation. This requirement includes positive action when necessary to eliminate employee intimidation. If harassment of a minority group employee by coworkers or supervisor occurs, management is obligated to attempt to remedy the situation. The announcement of a policy against racial discrimination is not sufficient if racial discrimination is occurring. Management must take steps to ensure that the policy is observed at all levels.

Work Assignments

It is unlawful to give minority group employees in a given job classification a disproportionately large share of undesirable or less favorable hours.

Recreational Activities

If an employer contributes financial assistance or other support to employee recreational or social activities, Title VII requires that the activity be open on an integrated basis.

Manner of Address

A violation may be found if supervisors adopt different approaches in addressing employees based on race, religion, sex, or national origin.

Employer Reprisal

An employer may violate Title VII by taking reprisals against employees who initiate Title VII proceedings against the employing institution.

Grooming Rules

An employer's grooming rules should take racial differences into consideration.

SEX DISCRIMINATION

It is unlawful to classify a job as male or female, unless sex is a bona fide occupational qualification for the job.

Rules that limit or restrict employment of married women but are not applicable to married men constitute sex discrimination and violate Title VII.

An employment policy that excludes applicants or employees due to pregnancy (married or otherwise) violates Title VII.

Occupational Qualification

An employer is permitted to label certain occupations as male jobs or female jobs if sex is a bona fide occupational qualification. These situations would not be included as bona fide occupational qualifications:

  • refusal to hire a woman because of assumed comparative employment characteristics of women in general. For example, the assumption that women have a higher turnover rate than men.
  • refusal to hire based on stereotyped characterizations of both sexes, such as men are less capable of assembling intricate equipment or women are less capable of aggressive salesmanship.
  • refusal to hire because of coworker, employer, client, or customer preferences (except where it is necessary for the purpose of authenticity or genuineness, such as the preference for actresses to play female parts).

RELIGIOUS

An employer is obligated to make reasonable accommodation to religious needs of employees, where such accommodations do not create undue hardship.

Religion is defined to include all aspects of religious observance, practice, and belief. Reasonable accommodation may include observances, practices, and beliefs (such as sabbath observance) that differ from the employer's or the potential employer's requirements regarding standards, schedules, or other business-related conditions.

RECORDS AND REPORTS

Every employer subject to Title VII is required: (1) to make and keep records relevant to determining whether unlawful employment practices have been or are being committed and (2) to preserve such records for periods prescribed by the Equal Employment Opportunity Commission. Title VII also requires employers who control apprenticeship or training programs to maintain detailed records on applicants and how they are selected.

POSTING OF NOTICE REQUIRED

The Equal Employment Opportunity Commission requires every employer and employment agency to post a prescribed notice that sets forth excerpts of pertinent provisions of the Act and information pertinent to filing a complaint. Such notices must be posted in a conspicuous place where notices to employees and applicants are customarily posted.

Executive Order 11246

Executive Order 11246 requires Federal contractors to take affirmative action to ensure that equal employment opportunity is a reality and to remedy effects of past discrimination which resulted in significant underutilization of women and minorities.

The Americans with Disabilities Act (ADA)

Section 503 of the Rehabilitation Act of 1973. Under the ADA, a disabled person is anyone who:

  • has a physical or mental impairment which substantially limits one or more major life activities
  • has a record of such an impairment
  • is regarded as having such an impairment.

The ADA prohibits discrimination based on disabilities in all terms and conditions of employment. An employer cannot eliminate an otherwise qualified disabled applicant or employee on the basis of the disability alone.

A "qualified" individual with a disability is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job.

Reasonable accommodations may include: modification of employee facilities to provide ready accessibility to such a person; job restructuring (reassigning nonessential duties and/or using part-time or modified work schedules); acquisition or modification of equipment or devices; provision of readers or interpreters; and/or other similar actions. An employer is required to make such adjustments for the known limitations of otherwise qualified disabled applicants and employees, unless a particular adjustment or alteration is demonstrated to impose undue hardship.

RESOURCE

See Course #25201: Americans with Disabilities Act (ADA)

Age Discrimination Employment Act of 1967 (ADEA)

The ADEA law forbidding employment discrimination on the basis of age applies only to individuals over 40 years old. It is unlawful "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's age."

Provisions Relative to Communicable and Infectious Diseases

People who are infected with a communicable or infectious disease, including Acquired Immune Deficiency Syndrome (AIDS), are disabled if the disease results in an impairment which substantially limits one or more major life activities. All of the policies that apply to people with disabilities also apply to people with communicable and infectious diseases, including the requirement for a reasonable accommodation to the known limitations of an otherwise qualified applicant or employee.

It is not discriminatory action under North Carolina law to fail to hire, transfer, promote, or to discharge a disabled person because the person has a communicable disease which would disqualify a non-disabled person from similar employment. However, such action may be taken only when it has been determined necessary to prevent the spread of the communicable or infectious disease. There must be documentation or consultation with private physicians and/or public health officials in arriving at the determination. Concern for other employees who may fear working with the infected co-worker must never be the basis for the action, in the absence of a medically documented health hazard to other persons.

AIDS, unlike most communicable disease, is transmitted only by exchange of body fluids through sexual contact, sharing of needles and syringes, or transfusion of infected blood. According to the U.S. Department of Health and Human Services, Public Health Service, no cases have been found where the AIDS virus has been transmitted by casual contact. As a result, there is no evidence that employing a person with AIDS would present a health hazard to other people in the work place.