- Eeoc compliance manual section 902 certification
- TABLE OF CONTENTS
- Filing Process for Discrimination Charges
- Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008
- Compliance Manual
- Section 902 Definition of the Term Disability
- EEOC Subregulatory Guidance
- SECTION 2: THRESHOLD ISSUES
When a charge is filed with the Commission, the assigned investigator ordinarily will determine whether certain threshold requirements are satisfied before considering the merits of the discrimination claims.
Typically, it is fairly simple to determine whether threshold requirements are met. Sometimes, however, an investigator will be unable to readily determine whether a particular threshold requirement has been met without additional investigation.
Eeoc compliance manual section 902 certification
If a charge does not satisfy threshold requirements, it should be dismissed. While the principles discussed in this Section apply in most jurisdictions, a few may be inconsistent with the law in a particular jurisdiction. A charge filed with the Commission must present a claim that is cognizable under the laws enforced by the Commission. Specifically, the charge must allege a basis and an issue covered by the EEO statutes.
Thus, for example, the statute protects Whites, African-Americans, and Asians from race and color discrimination; men and women from sex discrimination; Iranians, Cubans, and Americans from national origin discrimination; and Christians, Jews, Muslims, and atheists from religious discrimination.
The following sections describe some specific kinds of charges that can be raised under the Title VII bases. Title VII prohibits both race and color discrimination.
Courts, however, do not always distinguish them. National origin discrimination includes discrimination based on place of origin or on the physical, cultural, or linguistic characteristics of a national origin group.
TABLE OF CONTENTS
Sometimes, national origin discrimination overlaps with race discrimination, and in such cases, the basis of discrimination can be categorized as both race and national origin. For further discussion of national origin discrimination, refer to the Commission's "Guidelines on Discrimination Because of National Origin," 29 C.
Part The Commission defines "religion" to include moral or ethical beliefs as to right and wrong that are sincerely held with the strength of traditional religious views. It also ensures that the Commission will not have to determine what is or is not a religion, something which it would be inappropriate for the government to do.
For further discussion of religious discrimination, refer to the Commission's "Guidelines on Discrimination Because of Religion," 29 C. Title VII prohibits discrimination based on sex, including both sexual harassment, where the prohibited conduct is sexual in nature, 28 and sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment.
Example 1 - CP alleges that her supervisor made frequent derogatory comments about women and referred to female employees as "girls. Example 2 - CP alleges that her supervisor refused to promote her because she refused to engage in sexual relations with him. For further discussion of sex discrimination, refer to the Commission's "Guidelines on Discrimination Because of Sex," 29 C. The EPA prohibits compensation discrimination based on sex. If a charge alleges compensation discrimination based on sex, the investigator should treat it as alleging a violation under both Title VII and the EPA, subject to statutory requirements such as timeliness.
For a more detailed discussion of compensation discrimination covered by the EPA, refer to 29 C.
For a more detailed discussion of age discrimination, refer to 29 C. In most circumstances, the ADA only prohibits employment discrimination against a "qualified individual with a disability.
Filing Process for Discrimination Charges
In such cases, it is necessary to determine whether the individual has a disability and is also qualified. Some investigation may be required before it can be determined whether an individual is a qualified individual with a disability. When the investigator is uncertain about whether an individual is covered, the charge should be taken and the issue investigated.
Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008
In some circumstances, the ADA protects someone who is not a qualified individual with a disability. These include:. Protected activity also includes testifying or presenting evidence as part of an internal investigation pertaining to an alleged EEO violation.
An individual is protected against retaliation for participation in the charge process, however, regardless of the validity or reasonableness of the original allegation of discrimination.
An individual need not establish a violation of the underlying statute to be afforded protection from retaliation. The investigator must determine whether a charge alleges discrimination pertaining to an issue covered by the EEO statutes. The range of issues covered by the EEO laws is very broad, and covers any matter related to an individual's employment.
Covered issues include, but are not limited to, the following:.
Section 902 Definition of the Term Disability
EEOC's coverage in this area is broad. Title VII, the ADEA, and the ADA prohibit discrimination related to job decisions, employment practices, or other terms, conditions, or privileges of employment 46 based on an individual's protected status or, in some circumstances, an individual's relationship to a protected individual.
Specific issues of this type that a charging party may raise include, but are not limited to, the following:. A charging party may allege harassment based on any of the protected bases. Forklift Sys. A charging party may allege that a reasonable accommodation was denied by a covered entity for a religious observance or practice. A covered entity is required to provide a reasonable accommodation unless it can show that doing so would impose an undue hardship. A covered entity will be able to establish undue hardship if it can show that the accommodation would require more than a de minimis burden.
The standard for reasonable accommodation and undue hardship for disability accommodation is different from the standard for religious accommodation.
For more guidance on religious accommodation, refer to 29 C. A charging party may also allege that a reasonable accommodation was denied by a covered entity for the known mental or physical limitations of an otherwise qualified individual with a disability. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.
The EEO statutes prohibit discrimination in labor organization practices, including referrals.
In addition, a labor organization is prohibited from refusing to bring a grievance because of an individual's protected status, 51 or because the grievance alleges discrimination. Discrimination in training programs might also constitute discrimination in hiring if participation in the program is required prior to employment, or regularly leads to employment. Title VII, the ADEA, and the ADA prohibit discrimination based on race, color, national origin, sex, religion, age, or disability in advertisements and recruitment related to employment, referral for employment, or apprenticeships or other training.
For example, a help-wanted advertisement that uses terms such as "young," "college student," or "recent college graduate" may deter individuals 40 or over from applying, and therefore would violate the ADEA. The ADA prohibits a covered entity from conducting a pre-offer medical examination or making pre-offer inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of a disability.
After it has extended a conditional offer, the entity may ask disability-related questions, or require a medical examination as long as it does so of all entering employees in the same job category, regardless of disability. If the questions or examination screens out the individual based on disability, the entity must show that the reason for doing so is job-related and consistent with business necessity. A covered entity is also prohibited from requiring a medical examination or making a disability-related inquiry of an employee, unless the examination or inquiry is shown to be job-related and consistent with business necessity.
The ADA requires that medical records be maintained separately and treated as confidential except under narrow circumstances, including informing a supervisor about a necessary restriction or accommodation.
For example, an employer may not have one job category for men and a separate job category for women who are performing the same work; 63 nor may an employer channel women, minorities, or individuals with disabilities into lower-paying jobs.
As noted above in the discussion of covered bases, the EEO statutes prohibit a covered entity from retaliating against an individual who has engaged in protected activity, which includes both participation in the EEO process and opposition to discrimination.
EEOC Subregulatory Guidance
The prohibition against retaliation is very broad and covers more than merely discriminatory treatment with respect to terms, conditions, or privileges of employment.
The anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. For example, it would be retaliatory to instigate criminal theft and forgery charges against a former employee because she filed an EEOC charge.
A charge must allege that a covered entity took a discriminatory action against a covered individual.
A charge must allege that a covered individual was subjected to discrimination. The following sections discuss who is protected by the EEO statutes. This determination requires consideration of all aspects of the worker's relationship with the employer.
Factors indicating that a worker is in an employment relationship with an employer include the following: This list is not exhaustive.
Other aspects of the relationship between the parties may affect the determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. Example 1 - CP provides computer consulting services to businesses.
The Respondent contracts with CP to produce a computer data base for a flat rate.
SECTION 2: THRESHOLD ISSUES
CP produces the data base at his own place of business, on his own equipment, and delivers the finished product to the Respondent. In these circumstances, CP is an independent contractor. Example 2 - A staffing firm hires CP and sends her to perform a long- term accounting project for a client. Her contract with the staffing firm states that she is an independent contractor.
CP retains the right to work for others, but spends substantially all of her work time performing services for the client, on the client s premises.
The client supervises CP, sets her work schedule, provides the necessary equipment and supplies, and specifies how the work is to be accomplished.
CP reports the number of hours she has worked to the staffing firm, which pays her and bills the client. In these circumstances, despite the statement in the contract that CP is an independent contractor, she is an employee of both the staffing firm and the client.
The following sections cover specific situations in which additional considerations may be relevant in determining whether an employer-employee relationship exists. A welfare recipient participating in work-related activities as a condition for receipt of benefits will likely be an "employee.
The determination of whether there is an employment relationship is based on the same factors outlined above. A union steward who does not receive wages from the union may still be an "employee" of the union.
Volunteers usually are not protected "employees. Example - CP was terminated from her position as a probationary volunteer firefighter after she failed an agility test. She alleges that the test has a disparate impact on women.
These benefits are "significant remuneration" sufficient to create an employment relationship between CP and Respondent. A volunteer may also be covered by the EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity. In such situations, discrimination by the respondent operates to deny the charging party an employment opportunity. Example - CP is a volunteer counselor with the Respondent, a public interest organization, and alleges that she was subjected to sexual harassment by her supervisor and coworkers.
While volunteer service is not a prerequisite to employment, former volunteers are given preferential treatment when competing for vacancies against applicants who have not volunteered with Respondent. Most of Respondent s regular, paid counselors initially performed volunteer work for Respondent. In this case, volunteer service regularly leads to employment with Respondent.
In most circumstances, individuals who are partners, officers, members of boards of directors, or major shareholders will not qualify as employees.