Was it just me, or was there a panic over the Supreme Court’s June 29 affirmative action decision? It seemed the blogosphere overreacted, worrying over what would happen to DEI initiatives.
The decision wasn’t surprising. Concerns about preferential admissions have been debated for a couple of decades. However, the decision itself contains guidance on how to consider race; schools can look at what a student has said about how race has affected their life (which, in my mind, encourages administrators to coach the student on what to say). This, say the regulators, will help them see the student's character and special abilities. There shouldn’t be much trouble if people follow these rules.
A New EEOC Update
Meanwhile, progress continues at the EEOC on guidance for preventing and remedying harassment in the workplace. We are now in the comment period on a new guidance document on legal standards and employer liability applicable to harassment claims.
You can download the document at https://www.eeoc.gov/proposed-enforcement-guidance-harassment-workplace. We’re invited to comment until November 1, 2023, at the federal e-regulation website, https://www.regulations.gov/document/the EEOC-2023-0005-0001.
The EEOC issued technical guidance on preventing harassment in 2017 but didn’t finalize the document because behaviors and social norms were changing so fast in response to the #MeToo movement.
According to the National Law Review, updates in the 2023 document include:
- “Social media conduct that occurs in a non-work-related context, but impacts the workplace,
- Sex-based harassment regarding sexual orientation and gender identity,
- Conduct not directed at the Complainant that contributes to a hostile working environment,
- Individuals harmed by unlawful harassment of a third party,
- Conduct on employer’s email system contributing to a hostile work environment,
- Conduct that occurs in a work-related context outside of the regular place of work.”
The guidance isn’t legally binding but regulators cite it in harassment cases. Moreover, the EEOC uses it as the foundation for claims against employers.
What Laws Does the EEOC Enforce?
The US Congress created the EEOC in 1964 to investigate complaints of discrimination defined in Title VII of the Civil Rights Act of 1964. The law prohibited discrimination based on race, color, religion, sex, and national origin. As other statutes do, it also prohibits retaliation for filing a complaint.
The Age Discrimination in Employment Act of 1967 (ADEA) protects people who are 40 or older from discrimination because of age.
The Pregnancy Discrimination Act (1978) amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
In 1990, Congress expanded EEOC’s role with the Americans with Disabilities Act. Any person with a physical or mental disability that prohibits a major life activity doesn’t suffer discrimination in housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. Title I of the ADA covers requirements for employers.
As social norms have changed, Congress has passed more laws to protect gender and sexuality. The Equal Rights Amendment and the Equality Act expanded EEOC’s mandate to include discrimination and harassment claims related to sex, sexual orientation, and gender identity.
Sections 501 and 505 of the Rehabilitation Act of 1973 outlaw discrimination against a qualified person with a disability in the federal government, prohibits retaliation for a complaint or action, and enforces reasonable accommodations for persons with disabilities—unless it would impose an undue hardship on the business.
The Equal Pay Act (1963) and amendments to Title VII make it illegal to pay differing wages to men and women alike if they perform equal work in the same workplace.
The Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal to discriminate against an applicant or employee because of genetic information, including family medical history. The Act also forbids harassment of any person because of genetic information.
What Must HR Do to comply with EEOC requirements?
It has been more than a few years since I had anything to do with the enforcement arms of the EEOC (other than writing about it), but my experience was that if you treat them like a resource rather than an adversary, you needn’t fear what will happen—IF you follow their guides for employers and HR/EEO professionals.
Here's a summary, but I recommend you get the guide. If you follow it, you will have success.
A Quick Guide for Success in Anti-Discrimination
- Train HR managers and all employees on EEO laws, develop a strong EEO policy, and enforce it. Don’t tolerate risky behavior.
- Launch your improvements with communication from your CEO (live discussion or video chat). Include a CEO video (or the CEO) in new employee orientation.
- Promote an inclusive, professional, and respectful culture in the workplace. If you have any doubts about getting culture right, hire an expert to guide you.
- Use neutral and objective criteria for employment decisions. Make your candidate pool broad and diverse for openings and promotions.
- Analyze duties, functions, competencies, and skills for roles; create qualification standards and ensure consistency when selecting candidates.
- Monitor compensation practices and appraisals to ensure fairness; provide training, mentoring, and access to workplace networks for advancement opportunities.
- Implement technology that supports internal mobility.
- Implement a strong anti-harassment policy with clear prohibited conduct guidelines, an easy-to-follow and private complaint process, protection from retaliation, confidential investigations, and corrective action.
- Submit reports on time.
When I was in the “HR trenches” in Jacksonville, Florida, we had about three regulatory complaints per year--none successful. I kept us out of trouble by:
- Staying in touch with contacts in regulatory bodies in Jacksonville and Tallahassee.
- Doing what they told me I should do.
- Following guidance from Dick Stelling, our corporate HR leader and guru—the font of whatever wisdom I gained from the experience.
Further reading: Unleash the Value of Your Talent Development Tech Stack
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