Audit, Compliance and Risk Blog

Federal laws protect individuals against job discrimination based on a variety of “protected classes” of characteristics. Most represent physical characteristics, such as race, sex, and disability. In addition, however, Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

On January 30, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a proposal to revise its requirements for covered Federal Government contractors and subcontractors, including federally assisted construction contractors and subcontractors. This proposal would implement provisions in Executive Order (EO) Number 13672, which President Obama issued on July 21, 2014 (I blogged about the E.O. here). These revisions expand anti-discrimination responsibilities of federal contractors and federal grant recipients, to cover “sexual orientation” and “gender identity.” Once implemented, employment practices in these workplaces will match private employers’ responsibilities under a growing number of state laws, and under some federal court cases interpreting Title VII of the Civil Rights Act of 1964 (Title VII).

On July 31, President Obama issued Executive Order (EO) Number 13673, establishing a series of reporting and procedural requirements for federal contractors, inducing them to provide “Fair Pay and Safe Workplaces” to their employees. Beginning in 2016, these new requirements will apply to contracts and subcontracts to provide more than $500,000 in services and/or non-standard goods to federal agencies. Some requirements are specific in the EO, while others will become clearer after revisions to the contracting standards codified as the Federal Acquisition Regulation (FAR).

One of the many national anti-discrimination laws administered by the US Equal Employment Opportunity Commission (EEOC) is the Pregnancy Discrimination Act of 1978 (PDA). PDA prohibits discrimination against women on the basis of “pregnancy, childbirth or related medical conditions.” EEOC receives about 6,000 complaints alleging this form of sex discrimination each year, which amounts to 6-7% of all complaints it receives. Last month EEOC issued its first stand-alone Enforcement Guidance for its staff to address PDA and related issues under the Americans with Disabilities Act (ADA), superseding discussions in the agency’s general Compliance Manual.

Title VII of the Civil Rights Act of 1964 provides a wide range of anti-discrimination measures, including prohibitions against employment discrimination based on race, color, religion, sex (or “gender”), and national origin.  Title VII is administered by the Equal Employment Opportunity Commission (EEOC), and enforced when EEOC or aggrieved employees file lawsuits in federal court.

Persons over 40 years old form a protected class under the Age Discrimination in Employment Act (ADEA) of 1967. Although separate from Title VII of the Civil Rights Act of 1964, ADEA provides protections similar to those preventing discrimination based on sex, race and religion. It applies to each employer “engaged in commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” It is administered by the Equal Employment Opportunity Commission (EEOC), which promulgates regulations and guidelines similar to those for Title VII and the Americans with Disabilities Act.

In 1990, the Americans with Disabilities Act (ADA) was enacted to protect the employment rights and opportunities of people with disabilities, and ensure their access to public services and accommodation. In September 2008, the ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions interpreting ADA narrowly, and provided additional clarifications intended to ensure the broad availability of ADA’s protections. The U.S. Equal Employment Opportunities Commission (EEOC) develops and applies employer standards, facilitates lawsuits by aggrieved employees, and can enforce ADA directly by filing its own lawsuits.

By now, every reader should know that employers in the United States must verify would-be employees’ eligibility to work in the U.S.  The critical form for doing so is Form I-9 (Employment Eligibility Verification), issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security.

The Civil Rights movement of the 1960s extended beyond the ballot box to enter most U.S. workplaces. Beginning with Title VII of the Civil Rights Act of 1964, federal (and follow-on states’) laws seek to ensure employees' rights to equal treatment, by prohibiting employer discrimination against employees because of any characteristics that historically have been the basis for discrimination (dubbed “protected classes”). Federally protected classes presently include the following:

This month marks the twentieth anniversary of the passage of the federal Family and Medical Leave Act (FMLA) of 1993. FMLA requires large employers to grant eligible employees time off to respond to a broad range of medical conditions that they or their immediate family members may suffer. Since 1993, the law has been amended and expanded a number of times, with the Department of Labor’s Wage and Hour Division (WHD) revising its regulations to incorporate and apply these changing requirements. For example, effective March 8, WHD has revised rules providing protections for National Guard and Reserve troops subject to deployments, and for airline flight crews.