Harry E. Owens, IPMA-CP Adjunct Faculty, University of Georgia. U.S. Equal Opportunity Commission 1

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1 Harry E. Owens, IPMA-CP Adjunct Faculty, University of Georgia U.S. Equal Opportunity Commission 1

2 What is The Equal Employment Opportunity Commission? What are the Federal Laws Prohibiting Job Discrimination? What Discriminatory Practices are Prohibited by These Laws? How Does EEOC Resolve Discrimination Charges? U.S. Equal Opportunity Commission 2

3 U.S. Equal Opportunity Commission 3

4 U.S. Equal Opportunity Commission 4

5 The most effective way to avoid an EEOC charge is to make sure that you have appropriate anti-discrimination policies and procedures in place and that all employees are exposed to training and understand these policies. Prevention and awareness are areas that employers should focus on when dealing with employee discrimination issues. U.S. Equal Opportunity Commission 5

6 1. CEO (open door policy) 2. Mission Statement 3. Human Resources Director/Officer/Clerk 4. Written Policy and Procedures 5. Training 6. Employee Relations (internal resolution) 7. Legal Counsel (Employment Lawyer) 8. Administrative Investigation (first line of defense) U.S. Equal Opportunity Commission 6

7 Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. U.S. Equal Opportunity Commission 7

8 An Independent Branch of The Federal Government. Enforces Laws Prohibiting Employment Discrimination. U.S. Equal Opportunity Commission 8

9 To Promote Equality of Opportunity in the Workplace and Enforce Federal Laws Prohibiting Employment Discrimination U.S. Equal Opportunity Commission 9

10 Established by Title VII of the Civil Rights Act of 1964 and began operating on July 2, 1965 with a mission to eradicate employment discrimination. EEOC has five commissioners and a General Counsel appointed by the President and confirmed by the Senate. Enforces the principal federal statutes prohibiting employment discrimination. U.S. Equal Opportunity Commission 10

11 2012 budget- $373,711,000 Full time employees- 2,354 U.S. Equal Opportunity Commission 11

12 53 field offices throughout the United States Individuals who believe they have been unlawfully discriminated against in employment begin by filing administrative charges. Through the investigation of charges, if the EEOC determines there is reasonable cause to believe that discrimination has occurred, it must then seek to conciliate the charge to reach a voluntary resolution between the charging party and the respondent (potential legal action). U.S. Equal Opportunity Commission 12

13

14 In June 1995 the EEOC instituted a new threetiered policy for processing charges to reduce its backlog and to more effectively fulfill its mission of redressing employment discrimination. Previously, EEOC policy required full investigation of all charges.

15 Category A: Under the June 1995 policy change, charges that meet the criteria of EEOC national or local enforcement plans and those for which an initial review detects a high probability that discrimination occurred are classified as category A and fully investigated. Category B: Charges for which additional evidence is needed to determine whether discrimination occurred are classified as category B. With category B cases, the EEOC routinely sends the employer a letter asking for its side of the story, but the claims of the two parties are verified by further independent investigation only as resources permit. Category C: Charges in which evidence of discrimination is not compelling or in which the charging party or the employer is not covered under one of the laws enforced by the EEOC are classified as category C and slated for immediate dismissal. Field office investigators categorize cases during or shortly after intake on the basis of the initial evidence provided by the charging party and their general impressions of the charge

16 Charges are prioritized into one of three categories for purpose of investigation. I. Category A, charges are priority charges to which EEOC devotes principal investigative and settlement efforts; II. Category B, charges are those where there appears to be some merit but more investigation is needed before a decision is made on handling; III. Category C, unsupported charges which are immediately closed. U.S. Equal Opportunity Commission 16

17 Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination and harassment based on race, color, sex, religion, or national origin (applies to employers who have 15 or more employees). The Age Discrimination in Employment Act of 1967, as amended (ADEA), protects persons 40 years of age or older from employment discrimination based on age. U.S. Equal Opportunity Commission 17

18 The Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Act Amendment Act of 2009, prohibits employment discrimination against qualified individuals with covered disabilities; The Equal Pay Act of 1963; as amended (EPA), prohibits employers from discriminating between men and women on the basis of sex in the payment of wages where they perform substantially equal work under similar working conditions in the same establishment; U.S. Equal Opportunity Commission 18

19 The Lilly Ledbetter Fair Pay Act of 2009, The bill amended Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA), and the Rehabilitation Act to make it more clear that wage discrimination is unlawful on the basis of: Race/Color; Religion; national origin; Sex; Pregnancy Sexual Harassment Retaliation or Age Disability Equal Pay/Compensation Genetic Information U.S. Equal Opportunity Commission 19

20 The Civil Rights Act of 1991, The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys fees and the possibility of jury trials. U.S. Equal Opportunity Commission 20

21 The Pregnancy Discrimination Act, as amended to Title VII of the Civil Rights Act of Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. U.S. Equal Opportunity Commission 21

22 1. Oncale v.sundowner Offshore Services Inc. 2. Burlington Industries v. Ellerth 3. Faragher v. City of Boca Raton -Same Sex Harassment actionable -Affirmative Defense -Vicarious Liability These decisions changed the legal landscape across the country. The rule in Ellerth and Faragher regarding vicarious liability applies to harassment based on race, color, sex, religion, national origin, age, or disability. U.S. Equal Opportunity Commission 22

23 Consequently, employers should establish antiharassment policies and complaint procedures covering all forms of unlawful harassment and provide training for workforce and supervisors. Establish an Unlawful Harassment Policy U.S. Equal Opportunity Commission 23

24 Discrimination is described as the failure to treat all persons equally where no reasonable distinction can be found between those favored and those who are not favored (Black s Law Dictionary). U.S. Equal Opportunity Commission 24

25 Any individual who believes that his or her employment rights have been violated may file a claim of discrimination with the EEOC. U.S. Equal Opportunity Commission 25

26 A charge may be filed: 1. In person at the nearest EEOC office; 2. By telephone; 3. By U.S. mail EEOC does not accept charges online. U.S. Equal Opportunity Commission 26

27 If an individual believes that they have been discriminated against at work because of their: 1. race, 2. color, 3. religion, 4. sex (including pregnancy), 5. national origin, 6. age (40 or older), 7. disability or genetic information, They can file a Charge of Discrimination.

28 All of the laws enforced by EEOC, except for the Equal Pay Act, require individuals to file a Charge of Discrimination with the EEOC before they can file a job discrimination lawsuit against their employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity. There are time limits for filing a charge.

29 A charge must be filed with the EEOC within 180 calendar days from the date of the alleged violation (to protect the charging parties rights). This 180 calendar day filing deadline is extended to 300 calendar days if covered by a state antidiscrimination law. U.S. Equal Opportunity Commission 29

30 These time limits do not apply to claims under the Equal Pay Act, because; Persons do not have to first file a charge with the EEOC in order to have the right to go to court (may raise possible Title VII sex discrimination issues). U.S. Equal Opportunity Commission 30

31 Within 90 days after receiving a notice of right to sue from the EEOC. Under EPA (Equal Pay Act), a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act. U.S. Equal Opportunity Commission 31

32 Title VII, the ADAAA and EEOC policy require that when a charge is received meeting the requirements of Compliance Manual 2.2(b), it should be docketed by the EEOC, and The respondent must be notified within 10 days - either by Form 131 with a copy of the correspondence or by Form 131 alone. U.S. Equal Opportunity Commission 32

33 U.S. Equal Opportunity Commission 33

34 U.S. Equal Opportunity Commission 34

35 U.S. Equal Opportunity Commission 35

36 U.S. Equal Opportunity Commission 36

37 The number of complaints the EEOC received of discrimination based on virtually all of the major categories increased in 2010 over 2009 (99,922). In 2010 the EEOC received: 29,029 complaints of sex discrimination (up 3.6 percent) 1,044 complaints of Equal Pay Act violations (up 10.8 percent) 35,890 complaints of race discrimination (up 6.9 percent) 11,304 complaints of national origin discrimination (up 1.5 percent) 3,790 complaints of religious discrimination (up 11.9 percent) 25,165 complaints of Americans With Disabilities Act Amendment Act (ADAAA) violations (up 17.3 percent) 23,264 complaints of Age Discrimination in Employment Act (ADEA) violations (up 2.1 percent) 30,989 complaints alleging some form of harassment (up 1.1 percent) In 2011 the EEOC received-99,947 claims

38 Here s how many complaints the EEOC handled in 2010, broken down by discrimination category. Percentage increases over 2009 appear in parentheses. 1. Retaliation: 36,258 (8% increase over 2009) 2. Race: 35,890 (up 7%) 3. Age: 32,264 (up 2%) 4. Sex: 29,029 (up 4%) 5. Disability: 25,165 (up 17%) 6. National origin: 11,304 (up 2%) 7. Religion: 3,790 (up 12%)

39 Nationwide Discrimination Charges, 2011 Race Retaliation Sex/Gender Religion National Origin Disability Age Retaliation 37.4% Race 35.4% Sex/Gender 28.5% Religion 4.2% Age 23.5% Disability 25.8% National Origin 11.8% U.S. Equal Opportunity Commission 39

40 Employer (respondent) must respond to the charge of discrimination, in writing, to the EEOC. Employer (respondent) must cooperate fully with the EEOC by providing any requested records/documents concerning the charge. Employer (respondent) must ensure no retaliation against the person(s) filing the charge or anyone who participates in the investigation. U.S. Equal Opportunity Commission 40

41 RESPONSE OF UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY, GEORGIA TO NOTICE OF CHARGE OF DISCRIMINATION EEOC CHARGE NO PERSON FILING CHARGE: Jane Doe RESPONSE DATE: SEPTEMBER 23, 2004 RESPONDENT S AUTHORIZED REPRESENTATIVE: WILLIAM C. BERRYMAN, JR., ESQ. ATHENS-CLARKE COUNTY ATTORNEY P.O. BOX 427 ATHENS, GA (706) [voice] (706) [fax] PRELIMINARY STATEMENT This document is responsive to the above-referenced Notice of Charge of Discrimination filed by Jane Doe ( Charging Party ) and responds to boxes 3 and 4 checked on EEOC Form 131. This response is organized in the same order as the EEOC Request for Information. The above representative investigated the charge of discrimination and, for the reasons set forth herein, found no evidence that the Respondent or its staff engaged in any unlawful or discriminatory activity as alleged by the Charging Party. RESPONSE TO REQUEST FOR INFORMATION 1. Give the correct name and address of the facility named in the charge. Unified Government of Athens-Clarke County, P.O. Box 1868, Athens, GA Supply a statement or documents which identify the principal product or service of the named facility. Local government. U.S. Equal Opportunity Commission 41

42 3. Submit a statement or documents which indicate how many employees are employed at the location where the Charging Party works/worked at the present time. The authorized number of employees of Respondent is 1,526. The Human Resources Department where the Charging Party works is located at Respondent s Satula Avenue building. There are 20 employees in the Human Resources Department. 4. Submit a written position statement on each of the allegations of the charge, accompanied by documentary evidence and/or written statements. Also include any additional information and explanation relevant to the charge. State each and every reason for the employment decisions that Charging Party alleges in the charge as discriminatory. Respondent responds to the narrative Discrimination Charge dated August 4, 2004 and submitted by the Charging Party with the Notice of Charge of Discrimination ( Narrative ). This response and statement of position follows the order of the Narrative. Respondent adamantly denies the Charging Party s charge in the first paragraph alleging discriminatory employment practices involving hiring & discharge, promotion, harassment, and training & succession. The Narrative makes no reference at all to issues of discharge, training or succession. The allegations regarding hiring, promotion and harassment are without merit for the reasons set forth in this Response. Respondent does not dispute the Employer Information section of the Narrative. Respondent does not dispute the first paragraph in the Nature of Complaint paragraph of the Narrative. Responding to the second paragraph, the investigator notes that he did not interview the previous Human Resources Director, John Doe, Jr. who is alleged by the Charging Party to have made a statement that the Charging Party was hired because he wanted a Black in one of the (personnel specialist) positions because the circumstances of Charging Party s hiring are not relevant to the issues in the Notice of Discrimination Charge. Respondent nevertheless disavows any alleged statement made by a former employee that race was or may have been a factor in Charging Party s hiring and stresses that such a statement or any intention supporting such statement would have been inappropriate. In the same paragraph Charging Party states that (t)hroughout the course of my employment in the personnel office I have gained direct knowledge and pretext of other positions which were designated for a certain demographic. I have not complained before because it is also my duty to keep us out of court. Charging Party offers no U.S. Equal Opportunity Commission 42

43 silence in the face of such alleged knowledge is particularly surprising and disturbing because one of the Essential Duties of the Charging Party as set forth in the job description for her position is that such employee: Ensures departments adhere to Title VII of the Equal Employment Opportunity Act (EEOC), the Americans with Disabilities Act (ADA), Civil Rights Act of 1991, Equal Pay Act, and all other applicable employment laws, rules, and regulations. (See Exhibit A attached hereto.) If Charging Party knows of any violations of these laws, she is required as a part of her duties to report such violations to her superiors. The investigator has confirmed with the current Human Resources Director, Harry Owens, that there is no policy or directive, formal or informal, that would require or encourage an employee to withhold information about alleged illegal activity. Indeed Mr. Owens wrote the Charging Party on December 23, 2003 to follow up on a meeting between Mr. Owens and the Charging Party on December 19, A copy of the letter is attached as Exhibit B. At the meeting Mr. Owens shared with the Charging Party the performance standards and expectations of the Department. In the December 19 letter Mr. Owens said: Professionally communicating with HR team members and others in the organization is essential to our success. Additionally, my door is always open as well. Later Mr. Owens said: Integrity Honesty and integrity are fundamental elements of public service. Our personal integrity is something that no one can take away from us. In order to lose your integrity one has to make a choice to give it up. Please do not give up your integrity for anyone. It is essential and should be without equivocation in everything that we do as public servants. The Charging Party has had ample opportunity to furnish either Mr. Owens or her direct supervisors, Jackie Rains and Jan Hansford, with evidence of the instances that she has alleged. The investigator interviewed Mr. Owens, Ms. Rains and Ms. Hansford, and all state emphatically that the Charging Party has not made any allegations to them of employment discrimination or furnished any evidence of employment discrimination. 6. Submit copies of and/or explain all written rules relating to employee duties, conduct, and discipline for the Charging Party's job classification or department during the relevant period of time. Explain how an employee learns the contents of the rules and disciplinary procedures. The rules relating to employee duties, conduct, and discipline are enclosed herewith. An employee learns the contents of the rules and disciplinary procedures at an employee orientation which is mandatory for all employees in the Athens-Clarke County government upon employment. Additionally, employees are periodically updated & refreshed on the rules and duties through meetings and memos and directives. Respectfully submitted, U.S. Equal Opportunity Commission 43

44 The EEOC serves the public by enforcing equal employment opportunity laws and attempts to resolve discrimination disputes through a series of functions: 1. Conducts INVESTIGATION of charges of employment discrimination. 2. Attempts CONCILIATION (settlements) between charging parties and employers. 3. Initiates LITIGATION (legal action) in federal district court when warranted. U.S. Equal Opportunity Commission 44

45 How the EEOC investigates a charge depends on the facts of the case and the kinds of information they need to gather. In some cases, they visit the employer to hold interviews and gather documents. In other cases, they interview witnesses over the phone and ask for documents by mail. After they finish their investigation, they will let the charging party and the respondent/employer know the result. How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. It takes on average nearly 6 months to investigate a charge. U.S. Equal Opportunity Commission 45

46 1. If the EEOC hasn t found a violation of the law, they will send the Charging Party a Notice-of-Right-to-Sue. 2. This notice gives the Charging Party permission to file a lawsuit in a court of law. 3. If the EEOC finds a violation, they will try to reach a voluntary settlement with the respondent/employer. 4. If the EEOC cannot reach a settlement, the Charging Party s case will be referred to EEOC legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. 5. If the EEOC decides not to file a lawsuit, they will give the Charging Party a Notice-of-Right-to-Sue. U.S. Equal Opportunity Commission 46

47 It is illegal to Discriminate in: 1. Hiring and firing; 2. Compensation, assignment, or classification; 3. Transfer, promotion, lay-off, recall; 4. Job advertisements, recruitment; 5. Testing; 6. Training; 7. Other terms and conditions of employment. U.S. Equal Opportunity Commission 47

48 It is illegal to retaliate against an individual for: 1. Filing a charge 2. Participating in an investigation 3. Opposing unlawful employment practices U.S. Equal Opportunity Commission 48

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