Author: Lisa Pierson Weinberger, Mom, Esq.
When to Use
Federal, state and local laws require employers to provide equal employment opportunities and prohibit discriminatory conduct by employers that is based upon, or motivated by, an employee's membership in a protected class. Employers can be liable for discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or certain classifications based on genetic information, and other characteristics protected by state or local laws. As a result, employers have an obligation to ensure that all applicants and employees are granted equal opportunity within their organization.
Every employer should have an EEO policy in place that is provided and communicated to all employees, as well as internal EEO procedures that are followed by HR and management when making personnel-related decisions. Such policies and procedures, if enforced, will help to prevent unlawful discrimination, will aid in the defense of any lawsuits or administrative charges based upon the violation of EEO laws, and will be useful as evidence in any investigation or disciplinary proceeding.
- A Statement of Commitment to Equal Employment Opportunities - [Enter Employer Name] is committed to a policy of equal employment opportunity for applicants and employees. It is the policy of [Enter Employer Name] to apply recruiting, hiring, training, promotion, compensation and professional development practices without regard to actual or perceived race, color, religion, sex (including pregnancy), national origin, age, disability or certain classifications based on genetic information, [Enter Any State-Specific Protected Categories], or any other characteristic protected by federal, state, or local laws, regulations or ordinances.
- A Statement of Zero Tolerance - [Enter Employer Name] is committed to providing a workplace free from unlawful discrimination. As such, [Enter Employer Name] will not tolerate discrimination against any of our employees on the basis of membership in a protected category.
- A Description of Conduct That Constitutes a Violation of EEO - EEO laws are violated when an individual is either denied employment or is subject to an adverse employment action because of the individual's membership in a protected category. Protected categories include race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or certain classifications based on genetic information, [Enter Any State-Specific Protected Categories], or any other characteristic protected by federal, state, or local laws, regulations or ordinances.
Although not an exhaustive list, below are examples of conduct that could constitute a violation of this policy:
- Harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
- Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and
- Denying employment opportunities to an individual because of the individual's race, religion, national origin, or disability, or because of their participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
- A Complaint Procedure - Any employee who learns of, observes, or has reason to be concerned about conduct in violation of this policy must immediately inform [Designate at least two individuals with an unbiased relationship with employees, such as an HR professional]. Complaints do not need to be made in writing.
- A Statement That the Employer Will Investigate Complaints Thoroughly and Promptly - [Enter Employer Name] takes violations of this EEO policy very seriously. As a result, all complaints made pursuant to this policy will be thoroughly and promptly investigated.
- A Statement Regarding the Confidential Nature of the Investigation - In the course of any such investigation, [Enter Employer Name] will take appropriate measures to maintain the confidentiality of the participants to the extent possible. Although it may be necessary to divulge some information to ensure that a fair investigation is conducted, [Enter Employer Name] will limit information to only those individuals with a need to know of the complaint or of the investigation.
- A No-Retaliation Statement - All parties contacted in the course of an EEO investigation will be expressly reminded that [Enter Employer Name] will not tolerate retaliation in any form against any employee who believes or is concerned that a violation of the EEO policy has occurred and reports such conduct pursuant to this policy. Moreover, [Enter Employer Name] will protect any employee who participates in any such investigation from any resulting retaliatory conduct. If an employee believes that he or she is experiencing retaliation as a result of having made a complaint pursuant to this policy or having participated in an EEO investigation, he or she must promptly report the facts and names of the individuals involved to [Enter Name] and [Enter Name]. [Designate at least two individuals with an unbiased relationship with employees, such as an HR professional].
- Disciplinary Statement - If an investigator concludes that conduct in violation of this policy has occurred, the offending individual(s) will be subject to corrective action, including formal discipline, up to and including termination of employment.
- Formal Training - To ensure that [Enter Employer Name]'s employees remain educated about their obligations under this policy, [Enter Employer Name] will require all employees to periodically receive training regarding our commitment to equal employment opportunities in the workplace.
- Government Remedies - Complaints regarding violations of equal employment opportunity laws can also be made to the United States Equal Employment Opportunity Commission at one of its field offices. [Enter State Agency Contact Information if Applicable]
- Formal Employee Acknowledgement and Consent - By signing this [Enter Policy or Handbook Acknowledgement, Depending on Whether This is a Stand-Alone Document or Included in an Employee Handbook], I acknowledge that I have received the employer's EEO Policies and Procedures and I understand its contents and consent to its terms. I further acknowledge that I have been instructed to contact HR should I have any questions about this policy, and I agree to do so.
Prevention and education are the best tools to ensure the successful implementation of the EEO policy and procedures. A well-drafted policy is essential for employers to achieve this goal, as it helps to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. In addition, an employer's efforts to prevent and respond to instances regarding EEO concerns are key aspects to defending claims if such claims are ever made. By having an EEO policy in place, employers can defend claims of discrimination by demonstrating that the employer had a policy in place and exercised reasonable care to prevent and correct violations of the EEO policy if they arose.
However, EEO policies can only be effective in helping to eliminate discrimination (and provide a defense should it ever occur) if such policies are routinely provided to all employees, and if proper training is provided. Employers should take care to disseminate its EEO policy to all employees at the commencement of employment and through multiple avenues, such as those set forth below:
- Application materials;
- New employee orientation materials;
- Employee handbook;
- Electronic distribution, such as email;
- The employer's secure intranet website;
- Conspicuous places in the workplace, such as break rooms;
- With paychecks; and
- As part of employee performance reviews.
Employers should make sure that employees sign and acknowledge that they have received and understand the policy and consent to its terms. Employers should also make sure that signed acknowledgements of the EEO policy by employees are in each employee's personnel file. The policy should be referred to whenever a claim of discrimination arises.
A key component to a claim alleging violation of equal employment opportunity laws is the fact that an employee has been denied employment opportunities because of his or her membership in a protected class. Federal law includes several well-known protected categories in its statutes. However, many states and municipalities have laws protecting additional classes of individuals. As such, it is imperative that employers (and the designated individuals who are in charge of enforcing this policy) know of all protected categories under state and local laws in the jurisdiction(s) in which they operate and keep apprised of any changes to the law in this area. Protected classes may include breastfeeding women, marital status, familial status (including status as a family caregiver to children, parents, spouses or other family members) sexual orientation, gender identity and expression, military status, veteran status, Civil Air Patrol status and the use of lawful products (e.g., tobacco products) off company premises during nonworking hours. Some state and local laws also protect unpaid interns and volunteers.
Employers should remember that liability for discrimination exists in all phases of the employment relationship: during the hiring stage, during employment and upon termination. This means that employers can be liable for intentionally discriminating against applicants for employment in a protected class even if those individuals never become employees. To avoid such liability, employers should take care to ensure that the application and interview process are free from inappropriate inquiries and that bias-free hiring policies are followed consistently with all candidates.
Employers should note that on June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.