July 20th, 2017 | Debbie Lamb, Sterling Talent Solutions
Employment Law for HR: Discrimination in the Workplace
The background screening industry is highly regulated by laws/rules which protect job candidates, employers and background screening companies. The industry is regulated by legislation on all levels of government from federal to state to local districts. The variety of laws/rules can be overwhelming to an employer, and if regulations are not complied with properly, an organization might have to deal with penalties. To help ensure that they respect the rights of applicants and employees, organizations should be aware of their obligations and develop background checking policies that take into account their particular needs, risk tolerance and legal obligations.
Sterling is producing the “HR Essentials” webinar series with industry experts who will speak on HR compliance matters and provide best practices with actionable takeaways which companies can implement immediately. This month’s webinar, “Employment Laws for HR, Part 1: Discrimination in the Workplace,” presented by Robert Szyba of Seyfarth Shaw LLP, focuses on federal anti-discrimination laws and the priorities of the enforcer of those laws, the EEOC.
What are Anti-Discrimination Laws?
Anti-Discrimination laws at the federal level are the minimum protection available and apply to everyone nationwide. City, county and states also have laws in addition to the federal laws. The major anti-discrimination law is Title VII of the Civil Rights Act of 1964 (known as Title VII). This law protects people from discrimination based on race, color, religion, national origin or sex (sex includes sexual harassment). It prohibits retaliation against a person because they complained or filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit.
There are many amendments to Title VII:
- Pregnancy Discrimination Act (PDA)-Prohibits discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.
- Equal Pay Act (EPA)-Prohibits payment of different wages to men and women if they perform equal work in the same workplace.
- Age Discrimination in Employment Act (ADEA)-Prohibits discrimination against people who are 40 or older based on their age.
- Americans with Disabilities Act (ADA)-Prohibits discrimination against a qualified person with a disability. Requires reasonable accommodation of known physical or mental limitations of an otherwise qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business.
- Genetic Information Nondiscrimination Act of 2008 (GINA)-Prohibits discrimination against employees or applicants because of genetic information.
The Enforcer: The Equal Employment Opportunity Commission
Equal Employment Opportunity Commission (EEOC) is tasked with the enforcement of federal anti-discrimination laws. These laws generally cover most employers with at least 15 employees as well as employment agencies. The laws apply to hiring, wages and benefits. The EEOC has two roles: prevention of law violations in the form of outreach, education and assistance programs, and, enforcement by investigating, settling or litigating the laws.
The EEOC establishes a Strategic Enforcement Plan every four years to prioritize and set forth strategies to integrate all components of EEOC’s enforcement efforts to have a sustainable impact in advancing equal opportunity and freedom from discrimination. The 2013 priorities increased focus by staff on priority areas and increased collaboration among staff on issues such as background screening that adversely affect racial and ethnic communities and leave policies that discriminate against workers with disabilities.
EEOC Strategic Enforcement Plan
The 2017-2020 Strategic Enforcement Plan will prioritize ways to eliminate barriers in recruitment and hiring due to:
- The growth of the temporary workforce
- The increasing use of data-driven selection devices during the hiring process
- The lack of diversity in certain industries and workplaces, such as technology
The EEOC will focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities such as channeling of individuals into specific jobs due to their status in a particular group, job segregation or restrictive application processes and screening tools. The EEOC will continue to ensure that there is equal pay protections for all workers with a focus on compensation systems and practices.
Some emerging and developing issues for the EEOC include:
- Qualification standards and inflexible leave policies that discriminate against individuals with disabilities
- Accommodating pregnancy-related limitations under the ADA and PDA
- Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex
- Complex employment relationships including joint employers and independent contractors
- Backlash discrimination against Muslim, Sikh, Arab and Middle Eastern workers
- Vulnerable workforce including migrants and immigrants, members of Native American tribes and individuals of a certain race, ethnic, gender, age, disability status and religious groups, such as Muslims and Sikhs
Systematic harassment is the most frequent type of complaints to the EEOC. Over 30% of the charges filed with the EEOC allege harassment. There are complaints by groups being harassed based on sex, race, disability, age, national origin and religion.
Which Types of Industries Are At a Particular Risk of Scrutiny by the EEOC?
The EEOC has targeted particular industries based on risk. The Commission has a specific focus on protecting immigrant and migrant workers. The Business Services sector has had the highest number of lawsuits filed in 2016 by industry at 20, with the retail industry at the lower end with ten lawsuits.
- Business Services including staffing firms (this is especially a focus because of the growth of the on-demand workforce), finance, law, transportation, distribution, real estate, marketing, consulting, insurance and security
- Natural resources and construction which includes agriculture and mining employers
The background screening industry is regulated by the EEOC and must comply with all federal, state and local anti-discrimination laws. Sterling strives to stay up-to-date on how EEOC findings and new regulations will impact employment background screening companies. The key to minimizing the legal risk associated with background screening checks, especially criminal record checks, is having a well-thought out hiring policy in place that accounts for applicable legislation and guidance from the Equal Opportunity Commission.
Find out more about the federal discrimination laws and how they affect the workplace by downloading the OnDemand version of “Employment Laws for HR, Part 1: Discrimination in the Workplace.”
Please note that Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.