EEO Handbook Statement [20+ Employees]: Federal

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include

Employers covered under Title VII of the Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) should consider including this statement in their handbook. To be covered under these laws, employers (e.g., individuals, associations, corporations) must have 15 or more employees (for the Title VII and the ADA) and 20 or more employees (for the ADEA) for each working day in each of 20 or more calendar weeks in the current or preceding year.

To determine whether an employer has 15 or 20 or more employees, the employer must count all individuals on the payroll, including part-time employees and employees such as managers and supervisors. Under some circumstances, even foreign employees of a United States-controlled corporation may be counted toward the threshold.

Properly classified independent contractors are generally not considered employees.

Whether a shareholder/director is counted toward the required number of employees is generally dependent on the degree of control exercised by the entity over that person, and courts have used various standards and factors that apply to this analysis.

It is possible to aggregate the employees of two or more closely interrelated entities into a single employer in order to satisfy the minimum number of employees.

Courts disagree as to whether the workforces of joint employers may be aggregated to establish the number of employees' requirement.

Even employers that do not meet the 15/20-employee threshold for Title VII, the ADA or the ADEA should strongly consider including an equal employment opportunity policy in their handbook to promote a discrimination-free workplace and avoid exposure under other potential areas of liability, such as a claim of discrimination under Section 1981 of the federal Civil Rights Act and the Equal Pay Act. In addition, the Immigration and Nationality Act (INA) applies to employers with four or more employees.

This statement is intended to be used by employers with 20 or more employees. Employers with 15-19 employees that wish to provide the same protections as an employer with 20 or more employees may use this statement, but at a minimum, should use the EEO Handbook Statement [15-19 Employees]: Federal.

Customizable Handbook Statement

Equal Employment Opportunity

[Insert Company Name] is an equal opportunity employer. In accordance with applicable law, we prohibit discrimination and harassment against any applicant or employee based on any legally recognized basis, including, but not limited to: veteran status, uniformed servicemember status, race, color, religion, sex, sexual orientation, gender identity, age (40 and over), pregnancy (including childbirth, lactation and related medical conditions), national origin or ancestry, citizenship status, physical or mental disability, genetic information (including testing and characteristics) or any other consideration protected by federal, state or local law. Our commitment to equal opportunity employment applies to all persons involved in our operations and prohibits unlawful discrimination by any employee, including supervisors and co-workers.

Complaint Procedure

Any employee who believes they have been harassed, discriminated against or subject to retaliation by a co-worker, supervisor, agent, client, vendor or customer of [insert Company Name] in violation of this policy, or who is aware of such harassment, discrimination of or retaliation against others, should immediately provide a written or verbal report to their supervisor, any other member of management or Human Resources [or insert name/contact details for appropriate company representative or department].

After a report is received, a thorough and objective investigation by management will be undertaken. The investigation will be completed and a determination made and communicated to the employee as soon as practical. The Company expects all employees to fully cooperate with any investigation conducted by the Company into a complaint of proscribed harassment, discrimination or retaliation, or regarding the alleged violation of any other Company policies, and during the investigation, to keep matters related to the investigation confidential.

If we determine that this policy has been violated, remedial action will be taken, commensurate with the severity of the offense. Appropriate action will also be taken to deter any future harassment or discrimination prohibited by this policy. If a complaint of prohibited harassment, discrimination or retaliation is substantiated, appropriate disciplinary action, up to and including termination of employment, will be taken.

The Equal Employment Opportunity Commission (EEOC) and equivalent state agencies will accept and investigate charges of unlawful discrimination or harassment at no charge to the complaining party.

Protection Against Retaliation

Retaliation is prohibited against any person by another employee or by [insert Company Name] for using this complaint procedure, reporting proscribed harassment, or for filing, testifying, assisting or participating in any manner in any investigation, proceeding or hearing conducted by a governmental enforcement agency. Prohibited retaliation includes, but is not limited to, termination, demotion, suspension, failure to hire or consider for hire, failure to give equal consideration in making employment decisions, failure to make employment recommendations impartially, adversely affecting working conditions or otherwise denying any employment benefit.

Employees should report any retaliation prohibited by this policy to their supervisor, any management team member or Human Resources [or insert name/contact details for appropriate company representative or department]. Any report of retaliatory conduct will be investigated in a thorough and objective manner. If a report of retaliation is substantiated, appropriate disciplinary action, up to and including termination of employment, will be taken.

Guidance for Employers

Before taking any employment action (e.g., hiring, firing, promoting, disciplining or demoting an employee or applicant), ensure there is a legitimate business reason for the decision and that all actions are taken without regard to an individual's actual or perceived race, color, creed, religion, sex (including pregnancy), national origin, age (40 and over), disability, genetic information, veteran status or any other characteristic protected by federal, state and/or local laws. The US Supreme Court issued a decision holding that Title VIIs prohibition against discrimination "because of sex" includes a prohibition against discrimination based on sexual orientation or gender identity. Many state and local laws also explicitly prohibit discrimination on these bases.
Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, employers with more than three employees may not treat individuals differently based on citizenship or immigration status. United States citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination, though there are exceptions. Permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. In addition, citizenship status discrimination that is otherwise required to comply with law, regulation, executive order or government contract is permissible by law.
Because the law varies in certain jurisdictions, it is recommended that if an employer's workforce is close to the 15/20-employee threshold, the employer should consult legal counsel before making a conclusion as to whether it is a covered entity.
Treat employees fairly and consistently regardless of protected class status and document each employment action taken.
Avoid stereotypes, favoritism and preferential treatment.
Use respectful terminology in all communications.
Understand that harassment is any conduct, behavior or action that threatens and intimidates another individual based on their protected class status and creates a hostile work environment. Harassment can take many forms and may be physical, written or verbal.
Implement a multi-channel complaint system and designate representatives to field, address, and follow up on complaints of discrimination and harassment.
Ensure that employees are well aware of the potential consequences for engaging in discriminatory behavior.
Create an atmosphere of open communication and trust so that employees can voice their discrimination and harassment concerns without fear of retaliation.
Take all complaints of discrimination seriously. Promptly investigate all complaints and follow up with disciplinary measures if needed.
Document the steps taken to investigate any discrimination or harassment complaint, as well as any remedial action taken to address discriminatory or harassing conduct. Remind all employees involved of the Company's strict zero-tolerance policy with regard to retaliation.
The National Labor Relations Board (NLRB) considers it unlawful to require cooperation with company investigations without limitation because the requirement could be interpreted as requiring an employee to cooperate in an unfair labor practice investigation or else risk being disciplined. Employee participation in an interview as part of an unfair labor practice investigation must be completely voluntary.
Exercise caution when drafting and implementing rules that require employees to keep investigations confidential. The NLRB has held that rules requiring confidentiality during open investigations are presumptively lawful. However, the confidentiality requirement must be limited to the duration of the investigation to be given that categorically lawful status. The legality of more expansive rules will be determined on a case-by-case basis and in light of the employer's business justifications for the rule. In addition, the current NLRB is expected to overturn the decision that deemed such rules lawful.
Washington State employers should be aware that the state's Silenced No More Act prohibits employers from discharging or otherwise discriminating or retaliating against an employee for disclosing or discussing conduct that the employee reasonably believed to be illegal harassment, illegal discrimination, illegal retaliation, wage and hour violations, or sexual assault, that is recognized as illegal under state, federal, or common law, or that is recognized as against a clear mandate of public policy, occurring in the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises. Accordingly, Washington employers requiring employees to keep certain investigations confidential could run afoul of this law.
Consider checking back in with a complaining employee after the resolution of a complaint to determine whether the employee feels the matter has been properly addressed and has not experienced retaliatory or additional discriminatory conduct
In addition to federal antidiscrimination laws, employers may be subject to state and local laws prohibiting discrimination. Some of these laws may include categories not protected under federal law and/or may extend to smaller employers than those covered under federal law. Employers should ensure that they are aware of and compliant with the state and/or local law in jurisdictions where they have operations and adjust EEO policies as appropriate.
A critical component of achieving and supporting diversity in the workplace is ensuring that antidiscrimination policies are communicated effectively and enforced uniformly.
Train all employees and supervisors on the employer's policies prohibiting discrimination, harassment and retaliation and ensure compliance with the employer's equal employment opportunity (EEO) policy.
Download the "EEO is the Law" poster available in English, Spanish, Arabic and Chinese.