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Small Business Requirements

As a small business owner and an employer you may have legal responsibilities under the federal employment anti-discrimination laws.

Below you will find the information you need to determine whether the anti-discrimination laws apply to your particular business and if they do, what you need to know!

What are my responsibilities under federal employment discrimination laws?

If federal employment discrimination laws apply to your business:

  • You must provide¬†equal pay¬†to male and female employees who perform the same work unless you can¬†justify a pay difference¬†under the law.
  • You cannot discriminate against or¬†harass¬†applicants, employees or former employees because of¬†race,¬†color,¬†religion,¬†sex¬†(including¬†pregnancy,¬†sexual orientation, or¬†gender identity),¬†national origin,¬†age¬†(40 or older),¬†disability¬†or¬†genetic information¬†(including family medical history).
  • You cannot use employment policies or practices that have a¬†negative effect¬†on applicants or employees of a particular race, color, religion, sex or national origin or applicants or employees with disabilities unless the policies or practices are related to the job and necessary for the operation of your business.
  • You cannot use employment policies or practices that have a¬†negative effect¬†on applicants or employees who are 40 or older unless the policies or practices are based on a¬†reasonable factor other than age.
  • You may be required to provide reasonable accommodations (changes to the way things are normally done at work)¬†because of an applicant’s or employee’s religious beliefs or disability.
  • In general, you cannot request¬†medical¬†or¬†genetic¬†information from applicants. You may request¬†medical¬†or¬†genetic¬†information from employees only in limited circumstances.
    • If you legally obtain¬†medical¬†or¬†genetic¬†information, you must keep it confidential, with very limited exceptions, and in a separate medical file.
  • You cannot¬†retaliate¬†against (punish) an applicant, employee or former employee for reporting discrimination, participating in a discrimination investigation or lawsuit or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).
  • You must display a¬†poster¬†at your business that describes the federal employment discrimination laws.
  • You must¬†retain any employment records, such as applications, personnel records and payroll records, as required by law.

If you have at least 100 employees or if you are a federal contractor with at least 50 employees and at least $50,000 in government contracts:

  • You must¬†report data¬†about the ethnicity, race and gender of your workforce to the government.

You may have additional responsibilities under federal, state and local laws. Federal, state and local government websites may have additional information about these laws.

Do the federal employment anti-discrimination laws apply to my business?

It depends on how many employees your business has:

If you have at least one employee: You are covered by the law that requires employers to provide equal pay for equal work to male and female employees.

If you have 15 to 19 employees: You are covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability and genetic information(including family medical history). You are also covered by the law that requires employers to provide equal pay for equal work.

If you have 20 or more employees: You are covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability and genetic information (including family medical history). You are also covered by the law that requires employers to provide equal pay for equal work.

State and/or local employment discrimination laws may also apply to your business. State and local government websites may have information about these laws.

Who is an “Employee” Under Federal Employment Discrimination Laws?

Employees include:

  • People who work full-time, part-time, seasonally or on a temporary basis;
  • Individuals assigned to your business under a work program (for example, a program that provides placements for welfare recipients);
  • Volunteers, in some cases; and
  • Individuals who are not citizens¬†(including individuals who are undocumented).

If you have or had at least 15 employees for at least 20 calendar weeks this year or last year, your business is covered by most federal employment discrimination laws.

Volunteers

Volunteers usually are not protected “employees.” However, an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers’ compensation, and access to professional certification, even if the benefits are provided by a third party.(73)¬†The benefits constitute “significant remuneration” rather than merely the “inconsequential incidents of an otherwise gratuitous relationship.”(74)

Example¬†– CP was terminated from her position as a probationary volunteer firefighter after she failed an agility test. She alleges that the test has a disparate impact on women. Respondent claims that CP was not an employee, and, therefore, not protected by Title VII. State X provides volunteer firefighters up to $400/month in state retirement benefits (after five years of service); death and survivors benefits; group life insurance; disability and rehabilitation benefits; health care benefits; and tuition reimbursement for courses in emergency medical and fire service techniques. These benefits are “significant remuneration” sufficient to create an employment relationship between CP and Respondent.

A volunteer may also be covered by the EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity. In such situations, discrimination by the respondent operates to deny the charging party an employment opportunity.(75)

Example РCP is a volunteer counselor with the Respondent, a public interest organization, and alleges that she was subjected to sexual harassment by her supervisor and coworkers. Respondent maintains that CP is not its employee, and, therefore, not covered by Title VII. While volunteer service is not a prerequisite to employment, former volunteers are given preferential treatment when competing for vacancies against applicants who have not volunteered with Respondent. Most of Respondent s regular, paid counselors initially performed volunteer work for Respondent. In this case, volunteer service regularly leads to employment with Respondent. Therefore, CP is protected by the EEO statutes.

Non-Citizens

Individuals who are employed in the United States(82) are protected by the EEO statutes regardless of their citizenship or immigration status.(83) The EEO statutes do not protect non-citizens employed outside the United States.

Claims of discrimination based on citizenship status or unfair document practices are covered by the Immigration Reform and Control Act, and are within the jurisdiction of the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice. For detailed information on referral procedures to the Office of Special Counsel, see the Memorandum of Understanding Between the Equal Employment Opportunity Commission and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1997) (available at www.eeoc.gov).

Your Legal Responsibilities If the Federal Employment Anti-Discrimination Laws Apply to Your Business

Equal Pay for Equal Work

You must provide equal pay to male and female employees who perform the same work unless you can justify a pay difference under the law.

Equal Pay/Compensation Discrimination

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Equal Pay/Compensation and Sex Discrimination

Title VII also makes it illegal to discriminate based on sex in pay and benefits. Therefore, someone who has an Equal Pay Act claim may also have a claim under Title VII.

Other Types of Discrimination

Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the jobs must be substantially equal.

Don’t Discriminate/Harass Because of Race, Color, Religion, Sex, National Origin, Age, Disability or Genetic Information

You cannot discriminate against or harass applicants, employees or former employees because of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability or genetic information (including family medical history).

Policies/Practices with Negative Effect on Race, Color, Religion, Sex, National Origin or Disabilities

You cannot use employment policies or practices that have a negative effect on applicants or employees of a particular race, color, religion, sex or national origin or applicants or employees with disabilities unless the policies or practices are related to the job and necessary for the operation of your business.

How can I prevent harassment?

You can prevent harassment by:

  • Informing employees that harassment is prohibited;
  • Identifying who employees should contact to discuss harassment questions or concerns;
  • Assuring employees that they will not be punished for asking questions or sharing their concerns;
  • Responding to harassment questions or concerns and¬†investigating harassment complaints¬†promptly and effectively; and
  • Ensuring that managers understand their responsibility to stop, address and prevent harassment.

Hiring Practices That Have a Negative Effect on Certain Applicants

Some hiring practices may have an especially negative effect on applicants of a particular race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability status or age (40 or older).

For example:

  • Requiring that applicants be within a certain height or weight range may have an especially negative effect on female applicants.
  • Requiring that applicants pass a physical agility test may have an especially negative effect on older applicants.
  • Requiring that employees live within a certain geographic region may have an especially negative effect on applicants of a certain race.
  • Broadly excluding applicants with¬†criminal records¬†may have an especially negative effect on applicants based on race or national origin.

Hiring practices that have an especially negative effect on a particular set of applicants are not automatically illegal. However, you may need to take additional steps to avoid potential problems.

In particular, ensure that hiring practices that have an especially negative effect on applicants of a particular race, color, religion, sex, national origin or disability status are necessary for safe and effective job performance. For example, would people who are shorter or lighter than the height or weight restrictions be unable to perform the job safely or efficiently?

Ensure that hiring practices that have an especially negative effect on applicants who are 40 or older are based on a reasonable factor other than age. For example, if older applicants tend to pass a physical fitness test at a lower rate than younger applicants, ensure that the test is reasonably designed and administered to achieve a legitimate business purpose (for example, the speed, strength or agility required to perform a job).

You may also want to determine if there are other selection practices that would meet your needs and would have less of a negative effect on applicants. For example, your small IT business’s residency requirement (requirement that employees live within a certain geographic region) is intended to ensure that employees are familiar with the area and can quickly respond to on-site service calls. The residency requirement may have an especially negative effect on applicants of a certain race, who may be more likely to live just outside of the residency boundary. If so, instead of imposing a residency restriction, you might consider requiring that applicants be familiar with the geographic region your business serves and able to respond promptly to on-site service requests.

These rules can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

See also:

I’m recruiting, hiring or promoting employees.

Questions and Answers on EEOC Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act of 1967

The following questions and answers explain the EEOC’s¬†final rule concerning Disparate Impact and Reasonable Factors Other Than Age (RFOA).¬†¬†¬†

1. What are the purposes of the ADEA related to this rule?

The purpose of the ADEA is to prohibit employment discrimination against people who are 40 years of age or older.  Congress enacted the ADEA in 1967 because of its concern that older workers were disadvantaged in retaining and regaining employment.  The ADEA also addressed concerns that older workers were barred from employment by some common employment practices that were not intended to exclude older workers, but that had the effect of doing so and were unrelated to job performance.

2. What does the ADEA do?

It prohibits discrimination against workers because of their older age with respect to any aspect of employment.¬† In addition to prohibiting intentional discrimination against older workers (known as “disparate treatment”), the ADEA prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”), unless the employer can show that the practice is based on an RFOA.¬†¬†This rule concerns only disparate impact discrimination and the Reasonable Factors Other than Age defense¬†to such claims.¬†

3. What is the purpose of the rule?

The rule responds to two Supreme Court decisions[1]¬†in which the Court criticized one part of the Commission’s existing ADEA regulations.¬† The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.¬† However, it disagreed with the part of the regulations which said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”[2]¬† The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA.¬† The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

The rule does two things:

  • It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and
  • It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.

4. Who is required to follow the rule? 

The rule applies to all private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations.  Although the ADEA applies to the federal government as an employer, the rule does not apply to federal employers by virtue of section 633a(f) of the ADEA.

5. Does the rule apply to all employment practices?

No.¬† The rule applies to only a few kinds of employment practices.¬† Specifically, it applies only to practices that are¬†neutral¬†on their face, that¬†might harm older workers¬†more than younger workers, and that apply to¬†groups¬†of people.¬† For instance, it applies to tests used to screen employees or to some procedures used to identify persons to be laid off in a broad reduction-in-force (“RIF”).¬†

6. When does an employer have to show that its practice was based on an RFOA?

An employer would be required to prove the defense only after an employee has identified a specific employment policy or practice, and established that the practice harmed older workers substantially more than younger workers.

7. Do other statutory defenses apply to disparate impact claims? 

RFOA is the standard defense to ADEA impact claims.¬† The final rule revises section 1625.7 of the regulations, which only addresses the RFOA defense, and does not change other regulatory sections that apply to the ADEA’s other affirmative defenses.[3]¬† However, the rule does not preclude an employer from asserting another statutory provision in response to a particular claim.¬† For example, if an employee alleged that a practice required by a seniority system had a disparate impact, the employer could defend the claim by relying on section 4(f)(2) of the ADEA, which precludes using disparate impact analysis to challenge the provisions of a seniority system.

8.What determines whether an employment practice is based on Reasonable Factors Other than Age? 

An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers. 

Example 1:

If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones.¬† Nevertheless, the department’s actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department.

The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation.  It includes the following list of considerations relevant to assessing reasonableness:

  • The extent to which the factor is related to the employer’s¬†stated business purpose;
  • The extent to which the employer¬†defined the factor accurately¬†and¬†applied the factor¬†fairly and accurately, including the extent to which managers and supervisors were¬†given guidance or training¬†about how to apply the factor and avoid discrimination;
  • The extent to which the employer¬†limited supervisors’ discretion¬†to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer¬†assessed the adverse impact¬†of its employment practice on older workers; and
  • The¬†degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer¬†took steps to reduce the harm, in light of the burden of undertaking such steps.¬†

9. Must employers show that they used each of the considerations listed in the EEOC’s regulation to establish the defense?¬†

No.  The considerations merely describe the most common characteristics of reasonable practices.  The rule makes clear that the defense could be established absent one or more of the considerations, and that there could even be a situation in which the defense is met absent any of the considerations.  Similarly, the defense is not automatically established merely because one or more of the considerations are present.

10. Consideration 1625.7(e)(2)(i) refers to the extent to which the factor is related to the employer’s stated business purpose.¬† What is a “stated business purpose”?

The “stated business purpose” is the business reason articulated by the employer for adopting, or implementing, the employment practice in question.¬† “Stated” does not mean that the purpose must be written.

Note that consideration 1625.7(e)(2)(i) focuses on the method that the employer used to achieve its purpose, rather than the purpose itself.  For example, if a police department is concerned about losing its employees to neighboring departments and decides to raise police officer salaries to match those in surrounding communities, the goal of retaining officers is not relevant to the determination of reasonableness.  On the other hand, the extent to which the chosen method (raising salaries for certain employees) relates to the purpose (retaining staff) is relevant to the determination of reasonableness.

11. Consideration 1625.7(e)(2)(ii) is “[t]he extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination.”¬†¬†How would an employer show that it defined and applied the factor fairly and accurately?

The extent to which the employer defined and applied the factor fairly and accurately refers to the steps the employer took to make sure that the practice was¬†designed and applied¬†to achieve the employer’s intended goal while taking into account¬†potential harm to older workers.¬† The following examples illustrate the point:

Example 2:

A nursing home decided to reduce costs by terminating its highest paid and least productive employees.  To ensure that supervisors accurately assessed productivity and did not base evaluations on stereotypes, the employer instructed supervisors to evaluate productivity in light of objective factors such as the number of patients served, errors attributed to the employee, and patient outcomes.  Even if the practice did have a disparate impact on older employees, the employer could show that the practice was based on an RFOA because it was reasonably designed and administered to serve the goal of accurately assessing productivity while decreasing the potential impact on older workers. 

Example 3:

The same employer asked managers to identify the least productive employees without providing any guidance about how to do so.¬† As a result, older workers were disproportionately rated as least productive.¬† The design and administration of the practice was not reasonable because it decreased the likelihood that the employer’s stated goal would be achieved and increased the likelihood that older workers would be disadvantaged.¬† Moreover, accuracy could have been improved and unfair harm decreased by taking a few steps, such as those discussed in Example 2, above.

12. Does considering the extent to which the employer defined and applied the factor fairly and accurately mean that an employer must validate a test or other selection criterion as it would under Title VII?

No.¬† If a particular employment practice disproportionately harms applicants or employees based on race, color, religion, sex, or national origin, Title VII requires the employer to demonstrate that the practice is “job related for the position in question” and “consistent with business necessity.”¬† For example:

  • Title VII’s business necessity defense would typically require an employer that gave a physical fitness test that disproportionately excluded women to produce a validation study in accordance with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607, showing that the test accurately measures safe and efficient job performance.¬†
  • In contrast, the ADEA’s RFOA defense does not require employers to formally validate tests or other selection criteria.¬† Instead,¬†employers are required to demonstrate only that their choices were reasonable. ¬†The extent to which a practice measures skills related to a job informs the reasonableness of the practice.¬†¬†

13. Does the reference in consideration 1625.7(e)(2)(ii) to “the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination” require employers to train their supervisors or provide a certain type of training?

No.  As noted, the considerations are not requirements, and many employer practices will necessitate little, if any, guidance.  However, showing that it provided guidance or training in appropriate circumstances will help the employer establish that its actions were reasonable. 

Moreover, the rule’s reference to “guidance or training” recognizes that the manner in which employers convey their expectations to managers will vary depending on the circumstances.¬† For example, a smaller employer might reasonably rely entirely on brief, informal, oral instruction.

14. Consideration 1625.7(e)(2)(iii) is “[t]he extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes.”¬† Does this consideration mean that it is unreasonable to use subjective decisionmaking?¬†

No.¬† In many cases, it may be crucial for an employer to assess employee or applicant qualities such as flexibility and willingness to learn — qualities that are often assessed subjectively.¬† The rule does not say that employers may not seek these qualities in its workforce, or that they are not valuable.

However, consideration 1625.7(e)(2)(iii) does recognize that giving supervisors unconstrained discretion to evaluate employees or applicants using subjective criteria may result in disproportionate harm to older workers, because it allows supervisors’ biases and stereotypes to infect the decisionmaking.¬† Therefore, it is particularly useful to provide guidance when asking supervisors to evaluate subjective criteria that are subject to age-based stereotypes, such as productivity, flexibility, willingness to learn, and technological skills.¬† For example, an employer that wants its supervisors to evaluate technological skills might attempt to reduce possible harm to older workers by instructing managers to look specifically at objective measures of the specific skills that are actually used on the job.

15. Consideration 1625.7(e)(2)(iv) is “[t]he extent to which the employer assessed the adverse impact of its employment practice on older workers.”¬† Does this consideration require an employer to perform an adverse impact analysis of its employment practices?¬†

No.  The extent to which the employer assessed the adverse impact of its employment practice on older workers is simply one way of determining whether the employer considered the potential harm to older workers. 

In many cases, the employer will not need to assess whether the practice disproportionately harmed older workers, because the practice is not a neutral practice that affects more than one person.  For example, terminations for cause and voluntary separations generally are not the kinds of neutral practices that could have a disparate impact.

Where an¬†assessment of impact¬†is warranted,¬†the appropriate method will¬†depend on the circumstances, including the¬†employer’s resources¬†and the¬†number of employees affected¬†by the practice.¬† For example, a large employer that routinely uses sophisticated software to monitor its practices for race- and sex-based disparate impact may be acting unreasonably if it does not similarly monitor for age-based impact.¬† Other employers, lacking the resources or expertise to perform sophisticated monitoring, may show that they acted reasonably by using informal methods of assessing impact.

16. Consideration 1625.7(e)(2)(v) is “[t]he degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.”¬† What does the consideration require?

Again, this is a consideration, not a requirement.  The consideration reflects the fact that an employer can increase its ability to defend against a claim of age-based disparate impact if it can show that it balanced the potential harm to older workers against the cost and difficulty of taking steps that would still accomplish its business goal but reduce the harm on older workers. 

For instance, where the impact of an employment practice on older workers is minimal, the fact that an employer failed to take multiple steps to reduce harm would not mean that its chosen method is unreasonable.  However, the greater the potential harm, the more likely that an employer would be expected to avail itself of available options that would reduce the harm without unduly burdening the business.

17. Does consideration 1625.7(e)(2)(v) require an employer to search for and use the least discriminatory method for achieving its purpose? 

No.¬† The rule does¬†not¬†require an employer to search for options and use the one that has the least severe impact on older individuals.¬† However, an employer’s efforts to reduce the harm to older individuals are not irrelevant.¬† There may be circumstances in which the employer knew, or should have known, of a way to noticeably reduce harm to older workers without sacrificing cost or effectiveness; in these circumstances, it could be unreasonable for the employer to fail to use such an option.¬†¬†¬†¬†

18. Must an employer keep special documentation to prove that it reasonably designed and administered the practice to achieve a legitimate business purpose in light of potential harm to older workers?

No.  If disparate impact is established, the employer can support an RFOA defense with evidence that would be admissible in court, including testimony.  The rule does not change existing recordkeeping requirements under the ADEA (see 29 C.F.R. Part 1627); it does not require, and should not prompt, documentation other than that which an employer would make as part of its normal business operations.  However, being able to document the reasons for the design and administration of a practice can help an employer establish the RFOA defense.


[1] Smith v. City of Jackson, 544 U.S. 228 (2005); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008).

[2]¬†“Business necessity” is the defense to a claim of disparate impact under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.¬†¬†See¬†42 U.S.C. ¬ß 2000e-2(k)(1)(A)(i).

[3] See, e.g., 29 C.F.R. §§ 1625.6 (BFOQ), 1625.8 (seniority systems), 1625.10 (employee benefit plans). 

Policies/Practices with Negative Effect on Age 40 or Older

You cannot use employment policies or practices that have a negative effect on applicants or employees who are 40 or older unless the policies or practices are based on a reasonable factor other than age.

Provide Required Reasonable Accommodations

You may be required to provide reasonable accommodations (changes to the way things are normally done at work)¬†because of an applicant’s or employee’s religious beliefs or disability.

What should I do if an applicant or employee asks for breaks, leave or other changes to a work situation because of his medical condition or his religious beliefs?

We refer to these types of requests as requests for “reasonable accommodation.” In general, you are required to provide reasonable accommodations (changes to the way things are normally done at work) to applicants and employees who need them for¬†medical¬†or¬†religious¬†reasons.*

However:

  • You are¬†not required¬†to provide a disability accommodation that would require:
    • Incurring significant difficulty or expense;
    • Changing the fundamental duties of the job;
    • Lowering production or performance standards; or
    • Tolerating misconduct.
  • You are¬†not required¬†to provide a religious accommodation that would pose more than a minimal cost or burden.

To ensure that accommodation requests are handled properly and to prevent complaints:

  • Consider developing a¬†process¬†to handle accommodation requests that¬†encourages discussion¬†with employees about what is needed;
  • Ensure that managers know how to¬†identify and respond¬†to accommodation requests;
  • Determine whether you can provide temporary accommodation(s) if the agreed-upon accommodation cannot be provided immediately; and
  • If you cannot provide the employee’s preferred accommodation, determine whether you can provide an alternative accommodation and explain why the preferred accommodation was not provided.

* Federal, state and local laws may require you to provide reasonable accommodations for other reasons. Federal, state and local government websites may have additional information about these laws.

Prohibited Requests for Medical or Genetic Information

In general, you cannot request medical or genetic information from applicants. You may request medical or genetic information from employees only in limited circumstances.

If you legally obtain medical or genetic information, you must keep it confidential, with very limited exceptions, and in a separate medical file.

Don’t Retaliate

You cannot retaliate against (punish) an applicant, employee or former employee for reporting discrimination, participating in a discrimination investigation or lawsuit or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

What is retaliation and how can I prevent it?

Retaliation occurs when employers treat applicants, employees or former employees, or people closely associated with these individuals, less favorably for:

  • reporting discrimination;
  • participating in a discrimination investigation or lawsuit (for example, serving as a witness), or;
  • opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

For example, it is illegal to fire an employee because she filed a charge of discrimination with the EEOC. This is true even if the EEOC concludes that the charge of discrimination does not have merit.

Retaliation is not only illegal, it’s also bad for business. It is in your best interest for employees to feel comfortable reporting discrimination to you so you can investigate and address any conduct that violates the law or your company’s policies.

To help prevent retaliation:

  • Inform employees that retaliation is prohibited;
  • Assure employees that they will not be punished for taking¬†actions that are protected by law;
  • Respond to discrimination questions, concerns and complaints promptly and effectively;
  • Ensure that managers understand their responsibility to stop, address and prevent retaliation; and
  • Hold employees accountable for complying with and enforcing your discrimination rules and policies.

Inform Employees About the Laws

You must display a poster at your business that describes the federal employment discrimination laws.

“EEO is the Law” Poster

The law requires an employer to post a notice describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability or genetic information.

The “EEO is the Law” poster, prepared by the Equal Employment Opportunity Commission (EEOC), summarizes these laws and explains how an employee or applicant can file a complaint if s/he believes that s/he has been the victim of discrimination. EEOC’s poster is available in English, Arabic, Chinese and Spanish.

These posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.¬† In addition to posting the enclosed poster, employers are encouraged to post the electronic notice on their internal web sites in a conspicuous location.¬† In most cases, electronic posting supplements physical posting but does not itself fulfill the employer’s basic obligation to physically post the required information in its workplaces.¬† In some situations (e.g., for employees who telework and do not visit the employer’s workplace on a regular basis), it may be required in addition to physical posting.

The Americans with Disabilities Act (ADA) requires that notices of Federal laws prohibiting job discrimination be made available in a location that is accessible to applicants and employees with disabilities that limit mobility.

Printed notices should also be made available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read. Notices can be recorded on an audio file, provided in an electronic format that can be utilized by screen-reading technology or read to applicants or employees with disabilities that limit seeing or reading ability.  A screen-readable electronic format is available below.

For screen readers / electronic posting

For printing / posting in the workplace

If you have an older copy of the Poster, you can print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.

If you cannot print the poster, you can order up to five copies.

Other workplace posters

To obtain free copies of other federal required posters (not¬†the “EEO is the Law” poster) please contact:

U.S. Department of Labor
888-972-7332
U.S. Department of Labor Poster Page

 

Retain Employment Records

You must retain any employment records, such as applications, personnel, payroll and benefits records, as required by law.

Report Workforce Data

If you have 100 or more employees, or if you are a federal contractor with at least 50 employees and at least $50,000 in government contracts, you are required to complete and submit an EEO-1 Report to the EEOC and the U.S. Department of Labor every year.

The EEO-1 Report is a government form that requests data about the ethnicity, race and gender of your workforce.

See also:

Small Business Assistance

Recordkeeping Requirements

EEOC Regulations require that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination.

Under ADEA recordkeeping requirements, employers must also keep all payroll records for three years. Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination.

Under Fair Labor Standards Act (FLSA) recordkeeping requirements applicable to the EPA, employers must keep payroll records for at least three years. In addition, employers must keep for at least two years all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment.

These requirements apply to all employers covered by Federal anti-discrimination laws, regardless of whether a charge has been filed against the employer. 

When a Charge Has Been Filed

The EEOC Notice of Charge form that you receive should explain the agency’s record keeping requirements. When an EEOC charge has been filed against your company, you should retain personnel or employment records relating to the issues under investigation as a result of the charge, including those related to the charging party or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s).

Once a charge is filed, these records must be kept until the final disposition of the charge or any lawsuit based on the charge. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, “final disposition” means the date of expiration of the 90-day statutory period within which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.

Summary of Selected Recordkeeping Obligations in 29 CFR Part 1602

Frequently Asked Questions

We often receive similar questions from small business owners: Do the laws that the EEOC enforces apply to my business? How can I prevent discrimination? If I receive a charge of discrimination, what should I do? This section provides answers to these – and other – frequently asked questions.

Who is an “Employee” Under Federal Employment Discrimination Laws?

Employees include:

  • People who work full-time, part-time, seasonally or on a temporary basis;
  • Individuals assigned to your business under a work program (for example, a program that provides placements for welfare recipients);
  • Volunteers, in some cases; and
  • Individuals who are not citizens¬†(including individuals who are undocumented).

If you have or had at least 15 employees for at least 20 calendar weeks this year or last year, your business is covered by most federal employment discrimination laws.

What are my responsibilities under federal employment discrimination laws?

If federal employment discrimination laws apply to your business:

  • You must provide¬†equal pay¬†to male and female employees who perform the same work unless you can¬†justify a pay difference¬†under the law.
  • You cannot discriminate against or¬†harass¬†applicants, employees or former employees because of¬†race,¬†color,¬†religion,¬†sex¬†(including¬†pregnancy,¬†sexual orientation, or¬†gender identity),¬†national origin,¬†age¬†(40 or older),¬†disability¬†or¬†genetic information¬†(including family medical history).
  • You cannot use employment policies or practices that have a¬†negative effect¬†on applicants or employees of a particular race, color, religion, sex or national origin or applicants or employees with disabilities unless the policies or practices are related to the job and necessary for the operation of your business.
  • You cannot use employment policies or practices that have a¬†negative effect¬†on applicants or employees who are 40 or older unless the policies or practices are based on a¬†reasonable factor other than age.
  • You may be required to provide reasonable accommodations (changes to the way things are normally done at work)¬†because of an applicant’s or employee’s religious beliefs or disability.
  • In general, you cannot request¬†medical¬†or¬†genetic¬†information from applicants. You may request¬†medical¬†or¬†genetic¬†information from employees only in limited circumstances.
    • If you legally obtain¬†medical¬†or¬†genetic¬†information, you must keep it confidential, with very limited exceptions, and in a separate medical file.
  • You cannot¬†retaliate¬†against (punish) an applicant, employee or former employee for reporting discrimination, participating in a discrimination investigation or lawsuit or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).
  • You must display a¬†poster¬†at your business that describes the federal employment discrimination laws.
  • You must¬†retain any employment records, such as applications, personnel records and payroll records, as required by law.

If you have at least 100 employees or if you are a federal contractor with at least 50 employees and at least $50,000 in government contracts:

  • You must¬†report data¬†about the ethnicity, race and gender of your workforce to the government.

You may have additional responsibilities under federal, state and local laws. Federal, state and local government websites may have additional information about these laws.

See also:

Do the federal employment discrimination laws apply to my business?

How can I prevent harassment?

Hiring Practices That Have a Negative Effect on Certain Applicants

What should I do if an applicant or employee asks for breaks, leave or other changes to a work situation because of his medical condition or his religious beliefs?

What is retaliation and how can I prevent it?

Small Business Requirements

Who is protected from employment discrimination?

Applicants, employees and former employees are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).

Applicants, employees and former employees are also protected from retaliation (punishment) for filing a charge or complaint of discrimination, participating in a discrimination investigation or lawsuit, or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

See also:

Who is an “employee” under federal employment discrimination laws?

Employee Rights

What is retaliation and how can I prevent it?

Manager Responsibilities – Treating Employees Consistently

Example – Justifying Inconsistent Treatment

¬†What can’t I ask when hiring?

Before a job offer has been made, you¬†can’t ask questions¬†about an applicant’s disability or questions¬†that are likely to reveal whether an applicant has a disability.

This is true even if the disability is obvious. You can ask the applicant to describe or demonstrate how she would perform specific job tasks, but you can’t ask about her disability.

For example, you can’t ask an applicant:

  • Do you have a disability?
  • What medications are you currently taking?
  • Have you filed any workers’ compensation claims?

However, you can ask an applicant if he will need a reasonable accommodation during the application process or on the job, in certain circumstances:

You also can ask an applicant to voluntarily report that she has a disability for affirmative action purposes.

Different rules apply after a job offer is made and after the employee starts working for you.

You also¬†can’t ask questions¬†about an applicant’s¬†genetic information, such as the applicant’s family medical history or receipt of genetic tests or genetic counseling.

For example, you can’t ask an applicant:

  • Have any of your close relatives had a heart attack or been diagnosed with a heart condition?
  • Do mental health conditions such as bipolar disorder, depression or schizophrenia run in your family?
  • Have you had genetic tests to determine whether you are at risk for cancer?

These rules apply to any communications with or about the applicant, including application forms, interviews and reference checks.

These rules apply whether you are seeking information from the applicant or from someone else,¬†such as the applicant’s doctor, former employers, friends or family.

See also:

What shouldn’t I ask when hiring?

I’m recruiting, hiring or promoting employees.

How can I prevent harassment?

You can prevent harassment by:

  • Informing employees that harassment is prohibited;
  • Identifying who employees should contact to discuss harassment questions or concerns;
  • Assuring employees that they will not be punished for asking questions or sharing their concerns;
  • Responding to harassment questions or concerns and¬†investigating harassment complaints¬†promptly and effectively; and
  • Ensuring that managers understand their responsibility to stop, address and prevent harassment.

See also:

Harassment Policy Tips

What should I do if an applicant or employee asks for breaks, leave or other changes to a work situation because of his medical condition or his religious beliefs?

We refer to these types of requests as requests for “reasonable accommodation.” In general, you are required to provide reasonable accommodations (changes to the way things are normally done at work) to applicants and employees who need them for¬†medical¬†or¬†religious¬†reasons.*

However:

  • You are¬†not required¬†to provide a disability accommodation that would require:
    • Incurring significant difficulty or expense;
    • Changing the fundamental duties of the job;
    • Lowering production or performance standards; or
    • Tolerating misconduct.
  • You are¬†not required¬†to provide a religious accommodation that would pose more than a minimal cost or burden.

To ensure that accommodation requests are handled properly and to prevent complaints:

  • Consider developing a¬†process¬†to handle accommodation requests that¬†encourages discussion¬†with employees about what is needed;
  • Ensure that managers know how to¬†identify and respond¬†to accommodation requests;
  • Determine whether you can provide temporary accommodation(s) if the agreed-upon accommodation cannot be provided immediately; and
  • If you cannot provide the employee’s preferred accommodation, determine whether you can provide an alternative accommodation and explain why the preferred accommodation was not provided.

* Federal, state and local laws may require you to provide reasonable accommodations for other reasons. Federal, state and local government websites may have additional information about these laws.

See also:

Disability Accommodations Tips

Religious Accommodations Tips

Reasonable Accommodation Policy Tips

Manager Responsibilities – Reasonable Accommodation Tips

Leave Policy Tips

How can I avoid breaking the law when I discipline or fire an employee?

Unfortunately, it may be necessary for you to discipline or terminate an employee. There are many reasons why this action may be justified. Even so, it is possible that taking disciplinary action may result in a discrimination charge or complaint.

Ensuring that managers involved in discipline or termination decisions understand their responsibilities may help prevent discrimination.

  • Ensure that disciplinary and termination decisions are not based on¬†race,¬†color,¬†religion,¬†sex¬†(including¬†pregnancy,¬†sexual orientation, or¬†gender identity),¬†national origin,¬†disability,¬†age¬†(40 or older) or¬†genetic information¬†(including family medical history).
  • Ensure that disciplinary and termination decisions are not based on an employee’s decision to report discrimination, participate in a discrimination investigation or lawsuit, or oppose discrimination (for example, threatening to file a discrimination complaint).
  • Ensure that the decision to discipline or fire the employee is consistent with your discipline policy, or that you can justify treating the employee differently.
  • For example, your discipline policy may state that employees who are absent from work without authorization for three days will receive a warning. You may decide to waive the warning for an otherwise reliable employee who missed three days of work because of an unexpected family emergency.
  • Consider documenting the reason(s) for the discipline or termination.
    • This may help you defend your business if a discrimination charge or complaint is filed.
  • To prevent misunderstandings, it may be helpful to explain the reason(s) for the discipline or termination decision to the employee.
  • Respond promptly and effectively to¬†discrimination complaints regarding disciplinary action.
  • Retain¬†any disciplinary records as required by law.
    • If an EEOC charge of discrimination is filed, keep relevant records until the charge is resolved.

See also:

Handling Internal Discrimination Complaints About Disciplinary Action

Preventing Retaliation Tips

Manager Responsibilities – Treating Employees Consistently

Example – Justifying Inconsistent Treatment

What is retaliation and how can I prevent it?

Retaliation occurs when employers treat applicants, employees or former employees, or people closely associated with these individuals, less favorably for:

  • reporting discrimination;
  • participating in a discrimination investigation or lawsuit (for example, serving as a witness), or;
  • opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

For example, it is illegal to fire an employee because she filed a charge of discrimination with the EEOC. This is true even if the EEOC concludes that the charge of discrimination does not have merit.

Retaliation is not only illegal, it’s also bad for business. It is in your best interest for employees to feel comfortable reporting discrimination to you so you can investigate and address any conduct that violates the law or your company’s policies.

To help prevent retaliation:

  • Inform employees that retaliation is prohibited;
  • Assure employees that they will not be punished for taking¬†actions that are protected by law;
  • Respond to discrimination questions, concerns and complaints promptly and effectively;
  • Ensure that managers understand their responsibility to stop, address and prevent retaliation; and
  • Hold employees accountable for complying with and enforcing your discrimination rules and policies.

See also:

Preventing Retaliation Tips

Employee Rights

Manager Responsibilities – Treating Employees Consistently

Example – Justifying Inconsistent Treatment

What should I do if I receive an EEOC charge of discrimination?

  • Review the charge notice carefully.¬†The EEOC “Notice of a Charge of Discrimination” informs you that a complaint (a “charge of discrimination” or a “charge”) has been filed against your business.¬†It does not mean that you have violated the¬†laws¬†that the EEOC enforces.¬†A charge is a¬†complaint¬†of discrimination, not a¬†determination¬†that discrimination has occurred.
  • Follow the directions on the EEOC charge notice.¬†The notice may ask you to provide a response to the charge (a “position statement” ). This is your opportunity to explain why the claims in the charge are incorrect or not illegal.
    • You are not required to hire a lawyer to help you draft a position statement or otherwise respond to a charge of discrimination. However, at any point in the¬†EEOC charge process, you may do so, if you would like.
  • Consider EEOC¬†mediation¬†to resolve the charge quickly and confidentially, at no cost.
  • Respond to requests for additional information from the EEOC, even if you believe that the charge is frivolous.¬†The EEOC investigator may request documents, interviews, a conference or an on-site inspection. The information you provide may cause us to dismiss the charge.
    • If you need additional time to respond, or if you have questions or concerns about the type or amount of information that the EEOC has requested, contact the investigator assigned to the charge. The EEOC may grant you an extension or modify the information request, depending on the circumstances.
  • Protect employees from retaliation.¬†Ensure that the employee is not punished for filing the charge, and ensure that employees are not punished for participating in an investigation.
    • Retaliation is illegal, even if the EEOC concludes that the charge of discrimination does not have merit.
  • Retain relevant documents.¬†If you are not sure whether a document is relevant, ask your investigator.
  • Contact the EEOC investigator¬†assigned to your charge if you have questions.

See also:

How can the EEOC’s mediation program help me resolve a charge of discrimination?

What is retaliation and how can I prevent it?

Preventing Retaliation Tips

Manager Responsibilities – Treating Employees Consistently

Example – Justifying Inconsistent Treatment

How can the EEOC’s mediation program help me resolve a charge of discrimination?

Mediation is a free, voluntary, informal process for you to resolve disputes with the help of a neutral mediator.

Participation in mediation is not an admission of guilt. The mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps you and the person who filed the charge develop your own solution.

There are many benefits of mediation:

  • It is free.
  • It is confidential.¬†Information disclosed in mediation will not be shared with anyone, including EEOC investigators and lawyers, and will not be used against you by EEOC.
  • It can save you time and money.¬†Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. If successful, the charge is resolved and you avoid potentially lengthy, uncertain and expensive litigation.
  • It allows you to design your own solution.¬†You and the employee determine how to resolve the issue in a mutually acceptable way.

See also:

What should I do if I receive an EEOC charge of discrimination?

Prohibited Employment Policies/Practices

 

Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The law forbids discrimination in every aspect of employment.

The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age.

Job Advertisements

It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

For example, a help-wanted ad that seeks “females” or “recent college graduates” may discourage men and people over 40 from applying and may violate the law.

Recruitment

It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

For example, an employer’s reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.

Application & Hiring

It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not refuse to give employment applications to people of a certain race.

An employer may not base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

If an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, or individuals with disabilities. In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age.

If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense.

Background Checks

See “Pre-Employment Inquiries” below.

Job Referrals

It is illegal for an employer, employment agency or union to take into account a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about job referrals.

Job Assignments & Promotions

It is illegal for an employer to make decisions about job assignments and promotions based on an employee’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers.

An employer may not base assignment and promotion decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or individuals with disabilities, unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees age 40 or older if the test is not based on a reasonable factor other than age.

Pay And Benefits

It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work.

In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers.

Discipline & Discharge

An employer may not take into account a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about discipline or discharge. For example, if two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age.

Employers also may not discriminate when deciding which workers to recall after a layoff.

Employment References

It is illegal for an employer to give a negative or false employment reference (or refuse to give a reference) because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Reasonable Accommodation & Disability

The law requires that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the workplace (or in the ways things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

Reasonable accommodation might include, for example, providing a ramp for a wheelchair user or providing a reader or interpreter for a blind or deaf employee or applicant.

Reasonable Accommodation & Religion

The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause difficulty or expense for the employer. This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that he or she can attend religious services.

Training & Apprenticeship Programs

It is illegal for a training or apprenticeship program to discriminate on the bases of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not deny training opportunities to African-American employees because of their race.

In some situations, an employer may be allowed to set age limits for participation in an apprenticeship program.

Harassment

It is illegal to harass an employee because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

It is also illegal to harass someone because they have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment (including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature) is also unlawful. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Harassment outside of the workplace may also be illegal if there is a link with the workplace. For example, if a supervisor harasses an employee while driving the employee to a meeting.

Read more about harassment.

Terms & Conditions Of Employment

The law makes it illegal for an employer to make any employment decision because of a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

Pre-Employment Inquiries (General)

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

Employers are explicitly prohibited from making pre-offer inquiries about disability.

Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.

Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.

Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.

Pre-Employment Inquiries and Race

In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant’s race unless it has a legitimate business need for such information. If an employer legitimately needs information about its employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow, it may obtain the necessary information and simultaneously guard against discriminatory selection by using a mechanism, such as “tear-off” sheets. This allows the employer to separate the race-related information from the information used to determine if a person is qualified for the job. Asking for race-related information on the telephone could probably never be justified.

Pre-Employment Inquiries and Height & Weight

 Height and weight requirements tend to disproportionately limit the employment opportunities of some protected groups and unless the employer can demonstrate how the need is related to the job, it may be viewed as illegal under federal law. A number of states and localities have laws specifically prohibiting discrimination on the basis of height and weight unless based on actual job requirements. Therefore, unless job-related, inquiries about height and weight should be avoided.

Pre-Employment Inquiries and Financial Information

“Financial information” includes current or past assets, liabilities, or credit rating, bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts.

Federal law does not prevent employers from asking about your financial information.  But, the federal EEO laws do prohibit employers from illegally discriminating when using financial information to make employment decisions.

First, employers must not apply a financial requirement differently to different people based on their race, color, national origin, religion, sex, disability, age, or genetic information.  

Second, an employer must not have a financial requirement if it does not help the employer to accurately identify responsible and reliable employees, and if, at the same time, the requirement significantly disadvantages people of a particular race, color, national origin, religion, or sex.

Third, an employer might have to make an exception to a financial requirement for a person who cannot meet the requirement because of a disability.  

Employers also must follow the Fair Credit Reporting Act (FCRA), which is not enforced by EEOC.  It is enforced by the U.S. Federal Trade Commission.  This law requires employers to tell you in writing if they will do a background check.  It also requires them to get your written permission to do it, and to send you certain notices when they use the information.  If you would like to know more about FCRA, please visit http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre36.shtm, or contact the Federal Trade Commission at 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261.  

Depending on the state you live in, there also may be state laws governing employers’ use of financial information.

Pre-Employment Inquiries and Unemployed Status

“Unemployed status” includes current or past periods of unemployment.¬† Federal law does not prevent employers from asking about unemployed status, but the federal EEO laws do prohibit using this information to discriminate.¬† If an employer does reject job applicants based on unemployed status, it must do so consistently, without regard to race, color, national origin, religion, sex, disability, age, and genetic information.¬†¬†

Employers also must not screen out job applicants based on unemployed status if it does not help the employer to accurately identify responsible and reliable employees and if, at the same time, it significantly disadvantages people of a particular race, color, national origin, religion, or sex.   

In addition, an employer may have to make exceptions to a policy of rejecting applicants based on unemployed status for applicants whose unemployed status was caused by a disability.  

Depending on the state you live in, there also may be state laws governing employers’ consideration of unemployed status.

Background Checks

When making personnel decisions — including hiring, retention, promotion, and reassignment — employers sometimes want to consider the backgrounds of applicants and employees.¬† Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about an applicants or employees background, or to require a background check.¬† But the employer cannot conduct background checks or use the information obtained in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact.

Background Checks
What Employers Need to Know

A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission

When making personnel decisions – including hiring, retention, promotion, and reassignment – employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.

However, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.

Before You Get Background Information

EEOC

In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Except in rare circumstances, don’t try to get an applicant’s or employee’s genetic information, which includes family medical history. Even if you have that information, don’t use it to make an employment decision. (For more information about this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don’t ask any medical questions before a conditional job offer has been made. If the person has already started the job, don’t ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.

FTC

If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:

  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • won’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Using Background Information

EEOC

Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:

  • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job – despite the negative background information – unless doing so would cause significant financial or operational difficulty.

FTC

When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:

  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

    By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.

  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Disposing of Background Information

EEOC

Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.

FTC

Once you’ve satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports – and any information gathered from them – securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed. For more information, see¬†“Disposing of Consumer Report Information? Rule Tells How”¬†at¬†http://www.business.ftc.gov/documents/alt152-disposing-consumer-report-information-rule-tells-how.

Further Information

EEOC

To find out more about federal antidiscrimination laws, visit¬†www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on:

FTC

To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. For specific information on employment background reports, see:

The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law.

Background Checks:
What Job Applicants and Employees Should Know

Some employers look into your background before deciding whether to hire you, or before deciding whether you can keep your job. When they do, you have legal rights. The Federal Trade Commission (FTC) enforces a federal law that regulates background reports for employment, and the Equal Employment Opportunity Commission (EEOC) enforces federal laws against employment discrimination. This publication explains these laws, and how to contact the FTC and EEOC if you think an employer has broken the law. There might be other rules in your city or state, so it’s a good idea to check with someone who knows the laws of your area.

Questions About Your Background

An employer may ask you for all sorts of background information, especially during the hiring process. For example, some employers may ask about your employment history, your education, your criminal record, your financial history, your medical history, or your use of online social media.

Unless the employer is asking for medical or genetic information, it’s not illegal to ask you questions about your background, or to require a background check. (Employers aren’t allowed to ask for medical information until they offer you a job, and they aren’t allowed to ask for your genetic information – including family medical history – except in very limited circumstances.)

However, when an employer asks about your background, it must treat you the same as anyone else, regardless of your race, national origin, color, sex, religion, disability, genetic information (including family medical history), or older age (40 or older). For example, an employer is not allowed to ask for extra background information because you are of a certain race or ethnicity.

If an employer treats you differently because of your race, national origin, color, sex, religion, disability, genetic information (including family medical history), or older age, or asks you inappropriate questions about your medical status, medical history, or family medical history, contact the EEOC (see below).

Background Reports

Some employers also will try to find out about your background by hiring someone to do a “background report” on you. Two of the most common are credit reports and criminal background reports.

Special rules apply when an employer gets a background report about you from a company in the business of compiling background information. First, the employer must ask for your written permission¬†before¬†getting the report. You don’t have to give your permission, but if you’re applying for a job and you don’t give your permission, the employer may reject your application.

If an employer gets a background report on you without your permission, contact the FTC (see below).

Second, if the employer thinks it might not hire or retain you because of something in the report, it must give you a copy of the report and a “notice of rights” that tells you how to contact the company that made the report. This is because background reports sometimes say things about people that aren’t accurate, and could even cost them jobs. If you see a mistake in your background report, ask the background reporting company to fix it, and to send a copy of the corrected report to the employer. You also should tell the employer about the mistake.

You can get your credit report and fix any mistakes before an employer sees it. To get your free credit report, visit www.annualcreditreport.com or call 1-877-322-8228. You don’t have to buy anything, or pay to fix mistakes.

If the Employer Finds Something Negative in Your Background

If there is something negative in your background, be prepared to explain it and why it shouldn’t affect your ability to do the job.

Also, if the problem was caused by a medical condition, you can ask for a chance to show that you still can do the job.

Sometimes it’s legal for an employer not to hire you or to fire you because of information in your background, and sometimes it is illegal. An example of when it is illegal is when the employer has different background requirements depending on your race, national origin, color, sex, religion, disability, genetic information (including family medical history), or older age (40 or older). For example, it would be illegal to reject applicants of one ethnicity with criminal records for a job, but not reject other applicants with the same criminal records. This is true whether or not the information was in a background report.

Even if the employer treated you the same as everyone else, using background information still can be illegal discrimination. For example, employers shouldn’t use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and doesn’t accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.” (It doesn’t matter whether or not the information was in a background report.)

If you think an employer discriminated against you based on background information, contact the EEOC for further information (see below).

Where to Go For Help

EEOC

If you think that a background check was discriminatory, you may contact the EEOC by visiting its website at www.eeoc.gov, or by calling 800-669-4000 (voice) or 800-669-6820 (TTY). The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on-

  • Preemployment medical inquiries:¬†see¬†Preemployment Disability-Related Questions and Medical Examinations¬†at¬†www.eeoc.gov/policy/docs/preemp.html.
  • Medical inquiries during employment:¬†see¬†Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)¬†at¬†www.eeoc.gov/policy/docs/qanda-inquiries.html.
  • Genetic inquiries, including inquiries about family medical history:¬†see¬†Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008¬†at¬†www.eeoc.gov/laws/regulations/gina-background.cfm.
  • Using arrest and conviction records to make employment decisions:¬†see¬†Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII¬†at¬†www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.
  • Whether arrest and conviction records act as an automatic bar to all employment:¬†see¬†Reentry Myth Buster: On Hiring/Criminal Records Guidance¬†at csgjusticecenter.org/wp-content/uploads/2012/11/Reentry_Council_Mythbuster_Employment.pdf.

FTC

If an employer got your background report without asking your permission, or rejected you without sending you the required notices, contact the FTC at www.ftc.gov, or by calling 877-FTC-HELP (1-877-382-4357) (voice) or 866-653-4261 (TTY). For further information see-

The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them.

Pre-Employment Inquiries and Arrest & Conviction

Federal law does not prohibit employers from asking about your criminal history. But, federal EEO laws do prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII).

  1. Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).
  2. Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:
    • They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
    • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Difference Between Arrest Records and Conviction Records

The fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Several states’ laws limit employers’ use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. If you have questions about these kinds of laws, you should contact your state fair employment agency for more information.

Consumer Protections and Criminal Background Checks

Employers that obtain an applicant’s or employee’s criminal history information from consumer reporting agencies (CRAs) also must follow the Fair Credit Reporting Act (FCRA). For example, FCRA requires employers to:

  • Get your permission before asking a CRA for a criminal history report;
  • Give you a copy of the report and a summary of your rights under FCRA before taking a negative employment action based on information in the report.
  • Send you certain notices if it decides not to hire or promote you based on the information in the CRA report.

If you would like to know more about FCRA, visit the¬†Federal Trade Commission’s (FTC) website¬†(the federal agency that enforces FCRA). Or contact the FTC at 1-877-FTC-HELP (1-877-832-4357); TTY: 1-866-653-4261.

Pre-Employment Inquiries and Religious Affiliation or Beliefs

Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law.

Religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. In other words, an employer whose purpose and character is primarily religious is permitted to lean towards hiring persons of the same religion. This exception relieves religious organizations only from the ban on employment discrimination based on religion. It does not exempt such organizations from employing individuals due to their race, gender, national origin, disability, color, and/or age. Other employers should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor.

Pre-Employment Inquiries and Citizenship

Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. The INA requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form, and reviewing documents showing the employee’s identity and employment authorization. Other state and federal laws require some employers to use E-Verify. Federal law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is required for the Form I-9 or E-Verify processes, based on an employee’s citizenship status or national origin. For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment. Applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application:

“In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

E-Verify employers must use the system consistently and without regard to the citizenship, immigration status, or national origin of employees. They must also notify every employee who receives a Tentative Nonconfirmation (TNC) and should not make assumptions about employment authorization based on the TNC issuance. If an employee contests a TNC, employers cannot fire, suspend, modify a work schedule, delay job placement or otherwise take any adverse action against the employee just because the employee received a TNC.

As stated above, the INA prohibits employment discrimination on the basis of national origin by smaller employers (with four to 14 employees). The INA prohibits retaliation against individuals for asserting their rights under the INA, or for filing a charge or assisting in an investigation or proceeding under the INA. Discrimination charges under the INA are processed by the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division. For more information, contact IER at the numbers below (9:00 am-5:00 pm ET, Monday-Friday) or visit IER’s website. Calls can be anonymous and in any language:

1-800-255-7688 (employees/applicants)
1-800-255-8155 (employers)
1-800-237-2515 and 202-616-5525 (TTY for employees/applicants and employers) www.justice.gov/ier

Pre-Employment Inquiries and Marital Status or Number of Children

Questions about marital status and number and ages of children are frequently used to discriminate against women and may violate Title VII if used to deny or limit employment opportunities.

It is clearly discriminatory to ask such questions only of women and not men (or vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate against, for example, women with children.

Generally, employers should not use non job-related questions involving marital status, number and/or ages of children or dependents, or names of spouses or children of the applicant. Such inquiries may be asked after an employment offer has been made and accepted if needed for insurance or other legitimate business purposes.

The following pre-employment inquiries may be regarded as evidence of intent to discriminate when asked in the pre-employment context:

  • Whether applicant is pregnant.
  • Marital status of applicant or whether applicant plans to marry.
  • Number and age of children or future child bearing plans.
  • Child care arrangements.
  • Employment status of spouse.
  • Name of spouse.

Pre-Employment Inquiries and Gender

Questions about an applicant’s sex, (unless it is a bona fide occupational qualification (BFOQ) and is essential to a particular position or occupation), marital status, pregnancy, medical history of pregnancy, future child bearing plans, number and/or ages of children or dependents, provisions for child care, abortions, birth control, ability to reproduce, and name or address of spouse or children are generally viewed as non job-related and problematic under Title VII.

Any pre-employment inquiry in connection with prospective employment expressing or implying limitations or special treatment because of sex (unless based upon BFOQ) or any inquiry made of members of one sex and not the other, is similarly troublesome.

Pre-Employment Inquiries and Disability

Under the law, employers generally cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer. This is because, in the past, this information was frequently used to exclude applicants with disabilities before their ability to perform a job was evaluated.

Employers are permitted pre-offer to ask limited questions about reasonable accommodation if they reasonably believe that the applicant may need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation.

Also pre-offer, employers may ask if the applicant will need an accommodation to perform a specific job duty, and if the answer is yes, the employer may then ask what the accommodation would be.

The employer may not ask any questions about the nature or severity of the disability pre-offer.  However, after making a conditional job offer, an employer may ask any disability-related question or require a medical examination as long as all individuals selected for the same job are asked the same questions or made to take the same examination.

Pre-Employment Inquiries and Medical Questions & Examinations

The ADA places restrictions on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.

An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.

An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam.

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.

The law also requires that the employers keep all medical records and information confidential and in separate medical files.

Dress Code

In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.  However, there are a few possible exceptions.

While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers’ ethnic beliefs or practices, a¬†dress code must not treat some employees less favorably because of their national origin.¬† For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.

Moreover, if the dress code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship.¬†

Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.

Constructive Discharge/Forced To Resign

Discriminatory practices under the laws EEOC enforces also include constructive discharge or forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay.

Workplace Laws Not Enforced by the EEOC

THE CIVIL SERVICE REFORM ACT OF 1978 (CSRA)

This law makes it illegal to discriminate against a federal employee or job applicant on the bases of race, color, national origin, religion, sex, age, or disability. The CSRA also prohibits discrimination on the bases of certain other factors that don‚Äôt adversely affect employee performance, such as marital status, political association, and sexual orientation. The CSRA makes it illegal to fire, demote, or otherwise ‚Äúretaliate‚ÄĚ against a federal employee or job applicant for whistle-blowing or for exercising the right to file a complaint, grievance, or an appeal.

The Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) enforce the CSRA. For more information, contact the Office of Personnel Management at 202-653-7188 or visit http://www.opm.gov.

THE IMMIGRATION AND NATIONALITY ACT (INA), 8 U.S.C. § 1324B

This law makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based on an individual’s citizenship or immigration status, or national origin (Title VII prohibits to national origin discrimination for employers with 15 or more employees). Thus, under the INA, employers cannot hire only U.S. citizens or lawful permanent residents unless required to do so by federal law, regulation, executive order, or government contract. The INA prohibits employers from preferring to hire temporary visa holders or undocumented workers over qualified U.S. citizens or other protected individuals, such as refugees or individuals granted asylum.

The INA also prohibits document abuse. Document abuse occurs when an employer is verifying employment eligibility, and based on the worker’s citizenship status or national origin, requests more or different documents than federal law requires; rejects reasonably genuine-looking documents; or asks for specific certain documents.

For more information, contact the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division, which offers free and anonymous hotlines for workers with questions about their rights, and for employers who have questions about their obligations under the INA (9:00 am-5:00 pm ET, Monday-Friday). You may also visit IER’s website. Calls can be anonymous and in any language:

1-800-255-7688 (employees/applicants)
1-800-255-8155 (employers)
1-800-237-2515 and 202-616-5525 (TTY for employees/applicants and employers) www.justice.gov/ier

EXECUTIVE ORDER 11246

This law makes it illegal for federal contractors and certain subcontractors to discriminate on the basis of race, color, religion, sex, or national origin. It also requires federal contractors and subcontractors to take steps to ensure equal employment opportunity in the workplace.

For more information, contact the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) at
1-866-487-2365 (voice),
1-877-889-5627 (TTY), or
visit http://www.dol.gov/esa/ofccp.

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

This law makes it illegal to discriminate on the basis of race, color, or national origin in programs and activities receiving federal financial assistance.

For more information, contact the Department of Justice, Civil Rights Division at
202-514-2151 (voice),
202-514-0716 (TTY), or
visit http://www.justice.gov/crt/cor/coord/titlevi.htm.

TITLE II OF THE AMERICANS WITH DISABILITIES ACT (ADA)

This law makes it illegal to discriminate against people with disabilities in all programs, activities, and services offered by state and local government agencies. This includes public transportation services and physical access to state and local government buildings.

For more information, contact the U.S. Department of Justice, Civil Rights Division,
800-514-0301 (voice),
800-514-0383 (TTY), or
visit http://www.doj.gov/crt/ada/adahom.1.htm.

TITLE III OF THE ADA

This law prohibits disability discrimination by private entities that provide services to the public (also known as ‚Äúpublic accommodations‚ÄĚ. Public accommodations include, for example, restaurants, hotels, movie theaters, stores, doctors‚Äô offices, parks, and schools. The law applies to buildings, programs, and services. Under the law, public accommodations may have to provide ‚Äúauxiliary aids and services‚ÄĚ such as sign language interpreters, assistive listening devices, or large print materials, unless doing so would cause significant difficulty or expense.

For more information, contact the U.S. Department of Justice, Civil Rights Division,
800-514-0301 (voice),
800-514-0383 (TTY), or
visit http://www.usdoj.gov/crt/ada/adahom1.htm.

THE FAMILY AND MEDICAL LEAVE ACT (FMLA)

This law requires certain employers to grant up to 12 weeks of leave during a 12 month period to eligible employees who need time off because of a ‚Äúserious health condition‚ÄĚ that they or someone in their family is experiencing. FMLA leave can sometimes overlap with Title VII requirements concerning leave for pregnancy and pregnancy-related conditions and ADA and Rehabilitation Act requirements concerning leave as an accommodation for an employee with a disability.

For more information, contact the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division,
1-866-487-9243 (voice and TTY) or
visit http://www.dol.gov/esa/whd/fmla.

THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (OSHA)

This law sets out safety requirements for workplaces. The Occupational Safety and Health Administration works with states to investigate and enforce OSHA requirements.

For more information, contact the U.S. Department of Labor, Occupational Safety and Health Administration,
1-800-321-6742 (voice),
1-877-889-5627 (TTY), or
visit http://www.osha.gov/.

SECTION 503 OF THE REHABILITATION ACT

This law prohibits certain federal contractors and subcontractors from discriminating against qualified employees and job applicants with disabilities. Section 503 also requires contractors to take affirmative steps to hire and promote qualified people with disabilities. The non-discrimination provisions of Section 503 mirror those found in the ADA and Section 501 of the Rehabilitation Act.

For more information, contact the U.S. Department of Labor, Office of Federal Contract Compliance Programs,
1-866-487-2365 (voice),
1-877-889-5627 (TTY), or
visit http://www.dol.gov/esa/regs/compliance/ofcp/fs503.htm.

SECTION 504 OF THE REHABILITATION ACT

This law prohibits disability discrimination in programs and activities that receive federal financial assistance. This includes discrimination against qualified applicants and employees with disabilities, as well as discrimination in the services and activities provided by federal agencies to the public. The non-discrimination provisions of Section 504 are similar to those found in Title I of the ADA, covering employment discrimination, and Title II of the ADA, covering the programs, activities, and services offered by state and local governments.

For more information, contact the U.S. Department of Justice, Civil Rights Division,
800-514-0301 (voice),
800-514-0383 (TTY), or
visit http://www.usdoj.gov/crt/ada/adahom.1.htm.

SECTION 508 OF THE REHABILITATION ACT

This law requires federal agencies to ensure that electronic and information technology used by the government can be accessed and used by people with disabilities.

For more information, contact the U.S. Access Board,
202-272-5434 (voice),
202-272-5449 (TTY), or
visit http://www.access-board.gov/.

Information can also be obtained from the U.S. General Services Administration, Center for IT Accommodation (CITA),
202-501-4906 (voice),
202-501-2010 (TTY), or
visit http://www.section508.gov/.

THE SOCIAL SECURITY ACT

This law provides Social Security Disability Insurance (SSDI) to certain individuals with severe disabilities who can no longer work. The Social Security Act definition of ‚Äúdisability‚ÄĚ is different from the ADA definition of disability. For this reason, whether or not you are eligible to receive disability benefits does not determine coverage under the ADA.

For more information, contact the U.S. Social Security Administration,
1-800-772-1213 (voice),
1-800-325-0778 (TTY), or
visit http://www.ssa.gov/disability/.

THE FAIR LABOR STANDARDS ACT

This law regulates workplace practices related to minimum wage, overtime pay, and child labor.

For more information, contact the U.S. Department of Labor, Wage and Hour Division,
1-866-487-9243 (voice),
1-877-889-5627 (TTY), or
visit http://www.dol.gov/esa/whd/.

NATIONAL LABOR RELATIONS ACT

This law protects workers who wish to form, join or support unions, or who are already represented by unions; and workers who join together as a group (two or more employees) without a union seeking to modify their wages or working conditions.

For more information, contact the National Labor Relations Board
1-866-667-NLRB (1-866-667-6572)
TTY 1-866-315-NLRB (1-866-315-6572)
http://www.nlrb.gov/index.aspx

SECTION 1981 OF THE CIVIL RIGHTS ACT OF 1866

This law protects the equal right of all persons within the jurisdiction of the United States to make and enforce contracts without respect to race.  This includes all contractual aspects of the employment relationship, such as hiring, discharge, and the terms and conditions of employment.  The Supreme Court has held that the statute also prohibits retaliation against persons who complain about race discrimination prohibited by the statute.  This law is enforced by individuals, not a federal agency.

Civil Rights Act of 1866 & Civil Rights Act of 1871 ‚Äď CRA ‚Äď 42 U.S. Code 21 ¬ß¬ß1981, 1981A, 1983, & 1988

WORKERS COMPENSATION

Every state (and the federal government) has this law. It provides compensation for on-the-job injuries and illnesses. Some workers’ compensation programs also require employers to provide job modifications or alternative assignments, which also may be a reasonable accommodation under the ADA. If an employee’s occupational injury is covered under both Workers Compensation and the ADA (or Rehabilitation Act), the employee may be entitled to a job modification or reassignment under both laws.

TITLE I OF GENETIC INFORMATION NONDISCRIMINATION ACT

This title of GINA addresses the use of genetic information in health insurance. The provisions are enforced primarily by the Department of Labor’s Employee Benefits Security Administration, with the Department of Health & Human Services’ Office for Civil Rights enforcing Section 105 of Title I of GINA which relates to GINA’s protections for genetic information in the Health Insurance Portability Accountability Act privacy rule.

For more information, contact the Department of Labor, Employee Benefits Security Administration at
1-866-444-EBSA (3272)
1-877-889-5627 TTY
http://www.dol.gov/ebsa/consumer_info_health.html

Department of Health & Human Services, Office for Civil Rights at
1-877-696-6775
http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/genetic/index.html