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•
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•
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•
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•
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•
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PeopleAdmin 7
The Cost of Non-compliance
95,000 cases/year
X
$235,000 cost/case
$22 billion
Source: Equal Employment Opportunity Commission
How our technology
can drive compliance…
• Enforced workflows
• Defensible
employment
decisions
• Detailed audit trails
• Certified eligible lists
• Merit-based hiring
PeopleAdmin Talent Management
Solutions to Manage the Entire Employment Lifecycle
Hiring Practices & Equal Employment
Opportunity
By Jonathan E. Kaufmann
Kaufmann & Brick
Fairfax, VA
For OMNIGOV
Equal Employment Opportunity
Commission
• Enforces Civil Rights Laws
• Oversees Federal Complaint Program
• Investigates Non-Federal Sector discrimination
complaints
• EEOC AJ’s Conduct Hearings
• Renders Decisions
• Issues Regulations and Guidance
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 pregnancy)
• national origin
Prohibited Employment
Policies/Practices cont.
•
•
•
•
age (40 or older)
disability
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.
•
•
•
•
•
•
•
Federal Equal Employment Opportunity (EEO)
Laws
I. What Are the Federal Laws Prohibiting Job
Discrimination?
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment
discrimination based on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform
substantially equal work in the same establishment from sex-based wage
discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects
individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended
(ADA), which prohibit employment discrimination against qualified individuals with
disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit
discrimination against qualified individuals with disabilities who work in the
federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which
prohibits employment discrimination based on genetic information about an
applicant, employee, or former employee; and
the Civil Rights Act of 1991, which, among other things, provides monetary
damages in cases of intentional employment discrimination.
Non-statutory bases
Federal Executive Orders and Agency Policy
prohibits discrimination for the following bases:
•
•
•
•
Parental Status
Marital Status
Sexual Orientation
Political Affiliation
Protected Classes
• Race, Color, Religion, Sex or National Origin
• Workers over 40 are protected under the Age
Discrimination in Employment Act (“ADEA”
• The Americans with Disabilities Act (“ADA”)
prohibits discrimination against qualified
individuals with disabilities in job application
procedures, hiring, firing, advancement, etc.
Disparate Treatment
• Disparate treatment discrimination occurs
when race or another protected trait is a
motivating factor in how an individual is
treated.
Disparate Treatment: Cases
Suspect Hiring Practices
Animus
• No overt expressions of discrimination
Stereotyping and Bias
• Be careful if you use words that imply
preferences
Yielding to Customer Preferences
• What clients want cannot be based on
discriminatory considerations
Job Advertisements
• Illegal for an employer to publish a job
advertisement that shows a preference for or
discourages someone from applying for job
because of his or her race, age, disability, sex,
etc.
Applications & Hiring-General Rules
• It is illegal for an employer to discriminate
against a job applicant because of his or her
race, age, disability, sex, etc.
Obvious illegal practices:
• 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.
Tests
• Test must be necessary and
related to job
• 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
Recruitment Issues
• Job advertisements-no illegal preferences
• Employer requests-cannot honor illegal
requests
• Word-of-mouth employee referrals-can be
suspect unless diverse sources used
• Homogeneous Recruitment Sources-also can
lead to problems
Immigration Reform and Control Act
(IRCA) of 1986
• Employers need to assure that employees
hired are legally authorized to work in the US
• Employers cannot single out individuals of a
particular national origin
• Citizen requirements
also suspect
Religious Accommodations
• Employer process must accommodate
religious beliefs of an applicant unless undue
hardship
• Non-religious employers-may not recruit
individuals of a particular religion
• However, non-religious employers could hire
an individual based on their religion if it is a
BFOQ
Disability
• The Americans with
Disabilities Act of 1990
(ADA)
• Rehabilitation Act of
1973 – Applies to
Federal Agencies
Discrimination on the basis of
Disability
• The Americans with Disabilities Act of 1990 (ADA) protects
"qualified individuals with disabilities" from discrimination
by private employers in general as well as by state and local
entities and some federal government employers. The ADA
requires reasonable accommodation for such qualified
individuals, unless the accommodation would pose an
undue hardship. A qualified individual with a disability is an
individual "who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
It follows that, to the extent an individual cannot perform
the essential functions of the job even with reasonable
accommodation, he or she cannot claim to be a qualified
individual under the ADA.
What is a disability?
• The definition of "disability" found in the ADA
is three-pronged:
The term "disability" means, with respect to
an individual-- (A) a physical or mental
impairment that substantially limits one or
more of the major life activities of such
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment
"Physical or Mental Impairment"
• (1) Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine; or
• (2) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities.
Among the conditions that have been ruled to be physiological disorders
within the meaning of the ADA's above-quoted statutory definition are
bladder conditions, blood disorders, Hepatitis C, heart conditions or
coronary artery disease, continuing effects of back injuries, knee injuries
with permanent effects, thyroid disease, migraine headaches, AIDS/HIV at
all stages and loss of one lung. Many other conditions also qualify.
What Is Not an Impairment
• The EEOC's Guide explains that "impairment"
does not include mere "physical,
psychological, environmental, cultural and
economic characteristics" that are within the
normal range and not the result of a
physiological disorder.
• Examples: Obesity, Environmental, Cultural, or
Economic Disadvantage, Advanced Age,
Pregnancy, and Personality Traits
Applicants Who Identify Disabilities
• 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.
Hiring Disabled (Schedule A) Employees
-Federal Sector1. Proof of Disability: An individual wishing to be hired
under this Schedule A (5 C.F.R. 213.3102(u)) authority
must provide proof he or she is indeed an individual
with mental retardation, severe physical disability, or
psychiatric disability. This proof must be provided to
the hiring agency before an individual can be hired.
This proof may be in the form of documentation
obtained from licensed medical professionals, state or
private vocational rehabilitation specialists, or any
Government agency that issues or provides disability
benefits.
Hiring Disabled Employees – Part II
2. Certification of Job Readiness: An individual
hired under this authority must be ready to
perform the job for which they are being
considered. This certification is a statement that
the individual is likely to succeed in the
performance of the duties of the position for
which he or she is applying. For instance, the
certification of job readiness for an individual
applying for a position as an Administrative
Assistant or an Accountant may state that the
“individual is likely to succeed performing work in
an office environment.”
Reasonable Accommodation
• A reasonable accommodation is any change in
the workplace (or in the way 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.
Disability & Medical Exams During
Employment Application & Interview
Stage
• The law places strict limits on employees when it
comes to asking job applicants to answer medical
questions, take a medical exam, or identify a disability.
• For example, an employer may not ask a job applicant
to answer medical questions or take a medical exam
before extending a job offer. An employer also may
not ask job applicants if they have a disability (or about
the nature of an obvious disability). An employer may
ask job applicants whether they can perform the job
and how they would perform the job, with or without a
reasonable accommodation.
Disability & Medical Exams After a
Job Offer for Employment
• After a job is offered to an applicant, the law
allows an employer to condition the job offer
on the applicant answering certain medical
questions or successfully passing a medical
exam, but only if all new employees in the
same type of job have to answer the questions
or take the exam.
Disability & Medical Exams for
Persons who have started working as
Employees
• 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 believes that an
employee is not able to perform a job successfully or
safely because of a medical condition.
• The law also requires that employers keep all medical
records and information confidential and in separate
medical files.
Other Pre-Employment Inquiries
• Traps for the Unwary
Height & Weight
• Height and weight requirements tend to
disproportionately limit the employment
opportunities of some protected groups.
• Employer has to demonstrate it is related to the
job.
• Some states and localities prohibit discrimination
based on height and weight unless based on
actual job requirements.
• Therefore, unless job-related, inquiries about
height and weight should be avoided.
Credit Rating or Economic Status
• Inquiry into an applicant’s current or past
assets, liabilities, etc. tend to impact more
adversely on minorities and females.
• Exceptions-showing that such information is
essential to the particular job in question.
Religious Affiliation or Beliefs
• Questions about an applicant’s religious affiliation or
beliefs (unless 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. Cannot discriminate on other grounds.
• Other employers should avoid questions about an
applicant’s religious affiliation.
Citizenship
• Employers should not ask whether or not a job applicant is a
United States Citizen before making an offer of employment.
• IRCA 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.
• Also 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.
• IRCA 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.
Citizenship II
• The law prohibits employers from rejecting valid
documents or insisting on additional documents
beyond what is legally required for employment
eligibility verification (or the Department of
Homeland Security (DHS) Form I-9), based on an
employee’s citizenship status or national origin.
• As long as the document appears reasonably
genuine on its face, and relates to the employee,
it should be accepted.
• Because of potential claims of illegal
discrimination, employment eligibility verification
should be conducted after an offer to hire has
been made.
Citizenship III
• 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 document form upon hire.”
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.
• Questions should not only be
asked of women and not men
(or vice-versa).
• Even if both groups asked, such
questions may be seen as
evidence of intent to
discriminate against, for
example, women with children.
Marital Status II
• Generally, employers should not use non jobrelated 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.
Marital Status III
The following pre-employment inquiries may be regarded as
evidence of intent to Discriminate when asked in the preemployment 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.
Arrest & Conviction
• No Federal law that clearly prohibits an employer
from asking about arrest and conviction records.
• Could limit the employment opportunities of
some protected groups and thus cannot be used
in this way.
• An arrest alone does not necessarily mean that
an applicant has committed a crime.
• The employer should allow him or her the
opportunity to explain the circumstances of the
arrest(s) and should make a reasonable effort to
determine whether the explanation is reliable.
Security/Background Checks for
Certain Religious or Ethnic Groups
• If the employer requires all other applicants to
undergo background checks before being offered
a position, the employer may require members of
religious or ethnic groups to undergo the same
pre-employment investigations.
• May not subject only particular religious or ethnic
groups, such as Muslims or Arabs, to heightened
security checks.
• Some employers, such as defense contractors,
may require a security clearance for certain jobs
pursuant to a federal statute or Executive Order.
Security/Background Checks for
Certain Religious or Ethnic Groups II
• Clearance determinations must generally be
processed and made without regard to race,
religion, or national origin.
• However, security clearance determinations
for positions subject to national security
requirements under a federal statute or an
Executive Order are not generally subject to
review under the equal employment
opportunity statutes.
Prohibited Employment
Policies/Practices: Disparate Impact
• The laws enforced by EEOC prohibit employers
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 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 jobrelated and necessary to the operation of the
business.
Disparate Impact continued
• 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.
Federal Sector EEO Program
• All Federal Agencies have EEO complaint programs
Three Stages:
• Informal Stage – EEO Counseling and/or Mediation
• Investigative Stage – Formal Investigation can be timeconsuming
• Decision Stage – Final Agency Decision or Hearing
before an EEOC AJ
Many State and Municipalities use similar procedures.
EEOC and the Private Sector
• Complaints filed with a EEOC directly or with
Human Rights Commissions
• No EEO Counseling Process
• Companies are required to respond to EEOC
after a complaint is filed
• EEOC offers Mediation in many instances
• If EEOC believes the company engaged in
discriminatory conduct, it will actively
represent the complainant throughout the
legal process
Problem #1-The Confused Applicant
A Hispanic applicant has 15 years experience working for
a consulting firm that investigates complaints of
discrimination for the federal government. He applies for
a position as an EEO specialist with a Federal agency. The
position is advertised at the GS-11, GS-12 and GS-13
grade levels. The applicant receives a letter from the
agency stating he has not met the qualifications for the
GS-13 position. He believes his years of experience
means that he should have been found qualified. He also
believes he is not going to be considered at all because
the formal letter is very confusing.
Problem #1 continued
The applicant sends several e-mail messages to the HR specialist
assigned to the selection action. He also called several times. The HR
specialist is overwhelmed at work and fails to respond.
The applicant becomes angry and contacts the EEO office alleging
discrimination based on his national origin. This claim is assigned to an
EEO counselor who contacts the HR specialist. The HR specialist tells
the counselor this claim is ridiculous as the applicant is still being
considered for the GS-11 and GS-12 positions and his selection action
is pending. She wants the EEO counselor to dismiss this complaint.
Is the HR specialist correct?
What is the lesson of this scenario?
Problem #2-The Intern Program-Part I
Several years ago, Jack, a Division Chief, came to the HR specialist
complaining that his staff of scientists was getting too old. In addition,
he was interested in hiring younger staff members who he found to be
far more skillful in learning the newest technologies.
The HR specialist is aware that the organization has an Intern Program
that can be used to hire students from universities based on their
academic accomplishments as well as their experience. Those hired as
interns serve a two-year probationary period and then can be offered
permanent positions.
What should the HR specialist tell Jack?
Problem #3-The Intern Program-Part II
The HR specialist told Jack about the intern program but warns him about the
law prohibiting age discrimination against individuals over the age of 40.
Over the following three years, Jack has the HR specialist issue seven vacancy
announcements. In each case, applicants can apply under the regular
selection process or apply through the intern program. Jack hires six new
employees through the intern program. The average age of his new intern
employees is 28. He hires one candidate through the regular selection
process and his age is 39.
Horace, a 58-year-old applicant with a PhD in a relevant area of science,
applied for each of the seven positions and was not selected. He files a
complaint of
discrimination.
Does Jack have a problem? If so, why?
Problem #4-The Discontented Employee
Sue is one of the very few African-American managers in her
organization. Almost all the other managers are White and have
worked in the organization for over 30 years. Because of the
economic downturn and the losses to the value of their
retirement plans, most of these White managers are not
planning to retire anytime soon.
Sue notices that Molly, her white supervisor, keeps advertising to
fill one of the few vacant management positions. Sue knows
that Molly is under pressure from human resources and upper
level management to hire a minority candidate. Each time, a
qualified minority candidate applies. Each time, Molly
cancels the announcement and does not make a selection.
Problem #4 continued
Sue calls the local NAACP. They arrange for several of
their African-American staff members with excellent
credentials to apply to test the situation. The staff
members apply and are found qualified and Molly once
again cancels the announcement.
Does the organization have a problem? Does it matter
that the individuals applying were testing the
situation?
Q&A