HUMAN RESOURCES AND THE LAW
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Marvin R. Adams, Sr.
Overview of Course

Federal, State and School District Eleven Policies

Human Resources Do’s and Don’ts
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Federal Employment Laws
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Federal Civil Rights Laws Affecting the
Employer-Employee Relationship:

Title VII of the 1964 Civil Rights Act

Americans with Disabilities Act (ADA) of 1990

Age Discrimination in Employment (ADEA) of 1967

Equal Pay Act of 1963

Pregnancy Discrimination Act of 1978
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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Covers private employers with 15 or more employees.

Covers state and local governments.
Protects persons against employment discrimination because
of:


Sex

Race

Color

Religion

National origin
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Title VII of the Civil Rights Act of 1964
Prohibits adverse action or retaliation based
on opposition to employment discrimination.

Prohibits adverse action indirectly based on
sex, such as pregnancy discrimination and
sexual harassment.
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Sexual Harassment
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Sexual Harassment

Title VII does not explicitly mention sexual
harassment; however, courts universally
recognize that sexual harassment is a form
of employment discrimination.
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What is Sexual Harassment?

The EEOC regulations define sexual
harassment.
—
Unwelcome sexual advances, requests
for sexual favors, and other verbal or
physical conduct of a sexual nature
constitutes sexual harassment when:
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What is Sexual Harassment? (Cont’d.)
Submission to such conduct is a term or
condition of employment;

Submission to or rejection of such conduct is
used as a basis for employment decisions; or

Such conduct unreasonably interferes with
work performance or creates an intimidating,
hostile, or offensive working environment.

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Sexual Harassment

The courts recognize two forms of
sexual harassment:
—
quid pro quo
—
“hostile environment”
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What is Quid pro Quo Sexual Harassment?


“Quid pro quo” in Latin is literally
translated as “this for that.”
It typically occurs when some job penalty
or benefit is given based upon acceptance
or rejection of a request for sexual favors.
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What is
“Hostile Environment” Harassment?

Any conduct that:
—
creates an intimidating, hostile, or
offensive work environment;
—
unreasonably interferes with work
performance; or
—
adversely affects employment
opportunities.
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“Hostile Environment” (Cont’d.)

Hostile environment harassment usually
involves:
—
innuendos, jokes, inappropriate sexual touching,
display of pornography, or other degrading or
abusive conduct of a sexual nature;
—
—
repeated and continuous conduct over a period of
time;
becoming so bad that a “reasonable” person finds it
intolerable.
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FAQs About Harassment

—

—
If someone doesn’t complain about being
harassed, and you, as the supervisor, don’t know
about it, can D11 be held legally responsible?
YES.
Does a supervisor have to abide by a
complaining employee’s request to refrain from
taking any action or investigating a claim of
harassment?
NO.
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FAQs (Cont’d.)
Does a complaint of harassment have to
be in writing?
—
NO.


—
Does a harassment policy have to require
that employees report any harassing
conduct first to their immediate
supervisor?
NO.
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What are the responsibilities of supervisors
and managers with regard to harassment?

First, they are required to stop harassment
among their subordinates by recognizing
and dealing with cases as they occur.

Secondly, supervisors and managers must
let employees know that they take the
problem of harassment seriously, and that
they do not approve.
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Questions?
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Americans with Disabilities Act
(ADA)
—
—
—
Covers employers with 15 or more
employees, including part-time employees,
working 20 or more calendar weeks in the
current or preceding year.
Prohibits employment discrimination based
on disability.
Prohibits retaliation against any person who
has opposed discriminatory practices made
unlawful by the ADA.
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Age Discrimination in Employment Act
of 1967 (ADEA)

Covers employers with 20 or more employees.

Prohibits discrimination on the basis of age.

Protects persons over 40 years of age.
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Do’s and Don’ts
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Guidelines
Employers should ask only questions that will provide
information about the applicant’s ability to do the job.

An employer must not solicit information from the job
applicant for discriminatory purposes.

Even when the purpose is lawful, inquiries which
directly or indirectly disclose the applicant’s race,
color, religion, sex, national origin or age may
constitute evidence of discrimination.

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Colorado Law Prohibits Discrimination In:

Employment

Housing

Public Accommodation
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Time limits to file with CCRD from any
date of alleged discriminatory act:

Employment: 6 months

Housing: 1 year

Public Accommodation: 60 days
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What Size Employer is Regulated by
Civil Rights Law?

The Colorado Revised Statutes require that all
employers (regardless of the number of employees
working for the employer) be covered by the law against
employment discrimination as defined by state statute.
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Colorado’s Legislature
has written state laws protecting
groups from discrimination in
employment.
These groups are called
“PROTECTED CLASSES”
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PROTECTED CLASSES,
Colorado Revised Statutes
§ 24-34-402

Race

Color

National origin

Ancestry

Sex

Sexual orientation (Colorado, not federal)

Disability

Age (40 through 69)

Creed

Religion

Marital status (Colorado, not federal)
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Discrimination is
different treatment based on a person’s
Protected Class.

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Examples of Discriminatory
Employment Practices

Refusal to Hire

Discharge

Promotion or demotion

Compensation

Retaliation

Harassment
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Unlawful Harassment

Unlawful harassment is activity that:

based upon a person’s Protected Class

creates a “Hostile Work Environment”
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Factors that are assessed to determine if a
“Hostile Work Environment” has been created

the frequency of the discriminatory conduct;

its severity;

for example, is the conduct physically
threatening or humiliating (or a mere offensive
“uttering”); and,

whether it unreasonably interferes with an
employee’s work performance.
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Harassment must be sufficiently
severe or pervasive

to create an objectively hostile or abusive work
environment. The objective severity of harassment
must be judged from the perspective of a reasonable
person in the victim’s position, considering all the
relevant circumstances.
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Harassment – More factors to consider


If the harassment is sufficiently severe or
pervasive, does it create an objectively hostile or
abusive work environment?
The objective severity of harassment must be
judged from the perspective of a reasonable
person in the employee’s position considering all
the relevant circumstances.
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Age (40 through 69)

In Colorado’s anti-discrimination laws “Age” means a
chronological age of 40 years
through 69 years.

The Federal Age Discrimination law defines “Age” as 40
years old and above.
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SEXUAL ORIENTATION
Sexual orientation is defined as a person’s
orientation toward heterosexuality,
homosexuality, bisexuality, or
transgender status, or an employer’s
perception of that orientation.
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Colorado’s Statutory Definition of
Sexual Orientation

Heterosexuality

Homosexuality

Bisexuality

Transgender Status

or, a Perception Thereof
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Psychological Definition of Sexuality
“Sexuality” means a person’s individual
characteristics regarding sex and gender and
includes any of the following:

Biological Sex,

Gender Identity,

Social Gender Role (“expression”), or

Sexual Orientation
Source: American Psychological Association
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GENDER TERMINOLOGY

Gender Identity: An innate sense of
one’s own gender.
Gender Expression: External
appearance, characteristics or behaviors
typically associated with a specific
gender.
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
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“Orientation” Terminology



Heterosexual. A person who has an emotional
or romantic attraction to members of the
opposite sex.
Homosexual. A person who has an emotional
or romantic attraction to members of the same
sex.
Bisexual. A person who has an emotional or
romantic attraction to members of either sex.
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Colorado Definition of Transgender Status
“The term ‘transgender status’ is an umbrella term that
describes an individual whose gender identity or
gender expression is different from that traditionally
associated with that individual’s sex at birth.”
Rule 8.1 2 B. Colorado Civil Rights Commission
(adopted 10/31/07)
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Sexual Orientation – (cont’d.)
Frequently Asked Questions:

May employers and other institutions enforce dress
codes?
▪ Yes. Covered entities may still require reasonable grooming and
appearance standards. If different standards are enforced based
upon gender, however, individuals must be allowed to dress and
appear consistent with their gender identity.
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Sexual Orientation–(cont’d.)
Frequently Asked Questions:
Frequently Asked Questions:

Must restrooms now be ‘unisex’?
No. Covered entities may still maintain gendersegregated restrooms and other facilities like
locker rooms. Individuals, however, must be
allowed access to gender-segregated facilities
that are appropriate to their gender identity.

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Marriage To A CO-WORKER
(not federal, only Colorado)
Colorado Revised Statute § 24-34-402 states that
“It shall be a discriminatory or unfair employment
practice for any employer to discharge an employee
or to refuse to hire a person solely on the basis that
such employee or person is married to or plans to
marry another employee of the employer.”
Among exceptions: direct or indirect supervision, responsibility for
company money.
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Creed and Religion

Creed and religion are defined as “a religious,
moral or ethical belief, which is sincerely held
and includes all aspects of religious observance
and practice.”
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National Origin and Ancestry

National origin discrimination means treating
someone less favorably because he or she comes
from a certain place or belongs to a particular
national origin group, because of his or her ethnicity
or accent, or because it is perceived that he or she
has a particular ethnic background.
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Retaliation

An employer is prohibited from taking adverse reaction
against a person because that person:
▪
has opposed any practice that is discriminatory practice by law
▪ has filed a charge of discrimination
▪ has testified, assisted or participated in any manner in an
investigation, proceeding, or hearing involving a complaint or
charge of discrimination
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