eeoc compliance manual volume ii appendix 605-f
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eeoc compliance manual volume ii appendix 605-fIn July 2005, the subsection addressing time limitations was replaced to reflect the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) with a subsection currently captioned 'When Can a Discriminatory Act Be Challenged?'. In August 2009, the document was again revised to address timeliness issues after passage of the Lilly Ledbetter Fair Pay Act of 2009, with the addition of a new subsection concerning the time limitations for filing compensation discrimination charges. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. Sometimes, however, an investigator will be unable to readily determine whether a particular threshold requirement has been met without additional investigation. If a charge does not satisfy threshold requirements, it should be dismissed. (5) Where satisfaction of a particular requirement is a close question, the charge should be taken and processed. Specifically, the charge must allege a basis and an issue covered by the EEO statutes. For example, Title VII prohibits a male supervisor from sexually harassing his male subordinates on the basis of sex. (8) For example, an employer cannot refuse to hire women with preschool age children if it hires men with preschool age children. (9). For example, Title VII prohibits discrimination against African-American males even if an employer does not discriminate against white males or African-American females. (10) Similarly, intersectional discrimination can involve more than one EEO statute, e.g., discrimination based on age and disability, or based on sex and age. (11) 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.http://ramfl.com/userfiles/d3100-manual-shutter-speed.xml
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The following sections describe some specific kinds of charges that can be raised under the Title VII bases. (13) Courts, however, do not always distinguish them. (14) Consequently, an investigator generally need not determine whether an adverse action was based on race or on color as long as the charging party alleges one or the other, or both. (15) For example, Title VII prohibits discrimination against an Asian individual because of physical characteristics, e.g., facial features or height. (16). For example, it would be unlawful for an employer to discriminate against dark- or light-skinned African-Americans. (17) 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.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.CP has alleged discrimination based on sex covered by Title VII. For example, an employer must provide leave and benefits for women affected by pregnancy and childbirth on the same terms as it does for other individuals similarly unable to work. 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.F.R. Part 1620. Thus, a 55-year-old can allege an ADEA violation where he is replaced by a 48-year-old. (30) In such cases, it is necessary to determine whether the individual has a disability and is also qualified. When the investigator is uncertain about whether an individual is covered, the charge should be taken and the issue investigated.http://www.drspecsoptical.ca/upload/file/d3100-manual-nikon.xml These include: 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. For instance, an employer may not retaliate against an employee whose spouse or friend has engaged in protected activity by firing the employee. (44) This includes opposition to discrimination in state and local government services, public accommodations, commercial facilities, and telecommunications. (45) 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: 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. (47) In addition, the EPA prohibits compensation discrimination based on sex. (48) 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.A covered entity is required to provide a reasonable accommodation unless it can show that doing so would impose an undue hardship. 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 standard for reasonable accommodation and undue hardship for disability accommodation is different from the standard for religious accommodation.https://www.informaquiz.it/petrgenis1604790/status/flotaganis21052022-0727 For more guidance on this issue, refer to Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (1999) (available at www.eeoc.gov). 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. (52) 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. (55) 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.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. (64) 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.https://jebeli.com/images/case-3394-service-manual.pdf (65) For a more detailed discussion of charges based on retaliation, refer to Section 8: Retaliation, EEOC Compliance Manual, Volume II (1998) (available at www.eeoc.gov). 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: (71) 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. The Respondent contracts with CP to produce a computer data base for a flat rate. 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. 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 determination of whether there is an employment relationship is based on the same factors outlined above. She alleges that the test has a disparate impact on women. Respondent claims that CP was not an employee, and, therefore, not protected by Title VII.In such situations, discrimination by the respondent operates to deny the charging party an employment opportunity. (75) Respondent maintains that CP is not its employee, and, therefore, not covered by Title VII. 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. Therefore, CP is protected by the EEO statutes. The following factors should be considered: The firm pays CP a salary, and CP is supervised by an individual at a higher level. CP receives a share of the firm s profits in addition to his salary, but he does not have any input into decisions made by the firm, which are made by higher-level partners. While CP has the title of partner, he is in fact an employee. She is the head of one of the corporation s divisions and has no supervisor, although her actions are reviewed by the board of directors. She does not draw a salary, but receives a share of the profits made by Respondent. CP has the right to vote on decisions taken by Respondent, although her vote does not count as much as those of other individuals. CP is not an employee, and therefore is not protected by the EEO statutes. CP 1 is an employee of Respondent, and was required by Respondent to take the training. CP 2 is not an employee of Respondent, but took the training because it is required for a position with Respondent for which CP 2 would like to apply. CP 3 is taking the course because she wants to learn more about the subject matter covered by the training to help her obtain a position with an employer other than Respondent. CP 1, CP 2, and CP 3 are all covered by Title VII. For detailed information on referral procedures to the Office of Special Counsel, see the Memorandum of Understanding Between the Equal Employment Opportunity Commission and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1997) (available at www.eeoc.gov). The ADA does not exclude elected officials from coverage. For a discussion of this issue, refer to note 100 and accompanying text, below. The position was created and compensation was provided pursuant to state law. CP did not occupy a high place in the chain of command. She was not under the sheriff s personal direction, and promotion requests were brought to the sheriff's subordinate. There was no evidence that CP had a highly confidential and sensitive relationship with the sheriff. Under these circumstances, CP was not a member of the sheriff s personal staff. Therefore, a charge filed by CP would be processed pursuant to the procedures in 29 C.F.R. Part 1601. The Commissioner is exempt from State X's civil service laws, and the individual selected for the position is personally appointed by the Governor. The HAC is an arm of the state s Executive Department, and was created by the legislature to encourage fair treatment of, and to prevent discrimination against, the state's citizens. The HAC has the authority to make rules and regulations, to formulate policies that effectuate the purposes of State X's human affairs laws, and to make recommendations in furtherance of those policies. These are all policymaking functions. As the head of the HAC, the Commissioner plays a major role in formulating policies and having them accepted by the legislature. Therefore, the individual in the position of Commissioner is an appointee on the policymaking level and is covered under section 321. However, if an employer transfers an employee from a position that falls within the exemption to another position that does not fall within the exemption, it cannot compel the employee to retire. For example, a chief economist or chief research scientist may have little line authority, but still have a significant impact on policy decisions by making recommendations to top-level executives based upon the evaluation of economic or scientific trends. CP reported directly to the CEO, had direct access to the bank's decisionmakers, and attended weekly meetings of the Senior Officers Group. In addition, he alone was responsible for monitoring state and local federal legislative and regulatory developments, recommending policies to ensure compliance with them, and working closely with state legislators on legislation important to the savings bank industry. He also monitored and coordinated important tax litigation involving the bank, including recommending legal counsel, and coordinated bank policy on interest rates for passbook savings accounts. CP falls within the exemption for high policymakers, and therefore, Respondent may require his retirement at age 65. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 32-33 (1st Cir. 1995). CP was an in-house attorney specializing in labor law, and exercised relatively minor supervisory duties over four other labor law attorneys. He was far removed from the head of the Legal Department, being one of six attorneys who reported to one of eight Assistant General Counsel, who, in turn, reported to the General Counsel. CP also had only a modest impact on policy, had virtually no access to the high policymaking levels of management, and attended meetings of certain committees primarily for the purpose of providing legal advice. Respondent was not permitted to compel CP's retirement because he did not qualify as a bona fide executive or high policymaker. Whittlesey v. Union Carbide Corp., 567 F. Supp.1320, 1321-28 (S.D.N.Y. 1983), aff'd, 742 F.2d 724 (2d Cir. 1984). This figure applies regardless of the date of retirement and is not adjusted to account for inflation.Amounts attributable to Social Security, employee contributions, contributions of prior employers, and rollover contributions are excluded. A law in effect on March 3, 1983, may establish any retirement age. Because the law was not in effect on March 3, 1983, or enacted after September 30, 1996, the discharge decision does not fall under the exemption. The requirements for coverage for each of these entities are discussed below. A state or local government employer is covered under the ADEA regardless of its number of employees. (99) Therefore, investigators should continue to take charges against states under the ADEA. If a charge is filed against a state under the ADA or the EPA, the investigator should consult the legal unit. An individual is counted as an employee for each working day after hire and until employment terminates. Where a charge is filed during the early part of the calendar year, it may be necessary to wait until later during the same year to assess employer coverage. However, the 20 weeks need not be consecutive.For example, a newly formed company may have been in operation for only a short period at the time that a disputed action transpired. However, it would be covered if it met the 20-week requirement during the remainder of the same calendar year. (103) A review of Respondent's personnel records reveals the following: Therefore, it is a covered employer under Title VII. However, it is not covered by the ADEA because it did not have 20 or more employees for at least 20 weeks. There are a few narrow exemptions for employees in certain professions. (105) In the unlikely event that EPA coverage is challenged by the respondent, the investigator should consult the legal unit. An integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they can be considered the single employer of the charging party. The separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability. If a charge is filed against one of the entities, relief can be obtained from any of the entities that form part of the integrated enterprise. All of the factors should be considered in assessing whether separate entities constitute an integrated enterprise, but it is not necessary that all factors be present, nor is the presence of any single factor dispositive. The primary focus should be on centralized control of labor relations. It should be noted that while this issue often arises where there is a parent-subsidiary relationship, a parent-subsidiary relationship is not required for two companies to be considered an integrated enterprise. (108) Jane Smith is its president and sole proprietor. She is also the president and sole proprietor of three other computer training centers, and of Computer Training, Inc. (CTI), which manages ABC Corp.Smith is personally involved in the management of each of these companies and makes personnel decisions for the training centers in her capacity as president of CTI and as president of the individual centers. CTI pays the bills for each of the training centers, handles payroll, and negotiates contracts for the centers. CTI created a personnel handbook for use by each of the training centers. The profits of the individual training centers are pooled into one bank account in the name of CTI, which maintains a centralized management account allowing the profits of more successful training centers to cover the losses of less successful ones. A charge must be filed against each employer to pursue a claim against that employer. ABC is covered under Title VII because it has 18 employees. CP 2 files a charge against Smith Corp under Title VII. ABC is the sole employer of 17 employees. ABC also employs 5 employees who are jointly employed by Smith. Smith is the sole employer of 12 employees. Under the circumstances, ABC is covered under the ADEA, and Smith is covered under Title VII. Respondent also regularly procures employees for XYZ Corp., which has over 50 employees. Although ABC is not a covered employer under the ADEA, Respondent also regularly procures employees for XYZ, which is a covered employer. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a “formal proceeding.” Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx.The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. Trends in ADA Enforcement The ADA’s vision, like those for other federalMany of the panelists who testified at the Commission’s. ADA hearing anticipated the issues that the Supreme Court would be addressing—fewThe Supreme Court in a series of decisions has now givenIs the ADA’s visionReporter published its first survey of Title I employment cases under the. ADA, it found that employees prevailed in only 8 percent of the final courtMoreover, an analysis of EEOC’s administrative complaints revealed thatIn fact, in the majority of claims filed, “employers prevailed summarilyAccording to the ABA, the obstacles include: In addition, plaintiffs can beThese employerRepresentatives for individuals, on the other hand, assert that the ADA is notThese advocates argue that individuals with impairmentsAccording to advocatesTwo issues, “mitigating measures” and “judicialAdditionally, the Supreme CourtThis chapter examinesIs Entitled to Protection under the ADA? For example, under the Age Discrimination in EmploymentIn such cases,Legal Background Impairments include the following conditions: One who is “substantially limited” in a major life activity is either unableThis prong is intended to ensure that there is no discrimination because aIt also is intended to cover aThe individual need not actually have a substantially limiting impairment. TheThe term “mitigating measures” has been used in the ADA context to refer toAn example of a mitigating measure is an employee withHowever, without medical assistance, the employee might be wholly unable toCongress was considering the legislation. After the ADA was enacted, the EEOCHistory of Mitigating Measures Likewise, personsThe Senate Labor and Human Resources Committee report contains similar language:The Senate report also states: Such denials are theThe Senate report firstWhile some may believe this confusion is evidence that Congress never clearlyGuidance on Mitigating Measures Further, these agencies are mandated to offer technical assistance to helpCiting the congressional committee reports, the guidance states that “theDepartment of Justice in its interpretive guidance states, “The question ofIt is against this backdrop that the Supreme Court addressed the issue. Supreme Court’s View of the ADA Measures Thus, without eyeglasses or contact lenses, they cannot see to engage in many. The sisters applied to United Airlines for positions as commercial airline. They were told that they did not meet the airline’s “minimum vision. Because of their failure to meet the requirement, their job interviews wereAddressing the contentionSupreme Court acknowledged that under the ADA the EEOC, the Attorney General,The Court went on, however, to observe that no agency had been given theCourt refused to decide what deference should be given to the other agencyLikewise, the Court did not decideAs for any legislative intent mandating a different conclusion, the Court merelyCourt gave several reasons for its conclusion. Preliminarily, the Court foundThe Court then referenced three provisions of the ADA that it found evidenced anFirst, the actThe Court arrived at that conclusion because the statutory language, “substantially. Thus, the effect that the condition could or would have without mitigatingHowever, judging an individual’s impairment in its unmitigated state “runs. The Court stated that judging impairments in an unmitigated state would oftenThe Court found that such an approach, which would require treating individualsThe Court concluded that the number 43 million was “inconsistent with theThe Court cited a law review article, written by Robert Burgdorf, who was aAccording to the health conditions approach, the term disability includes anyBased on the healthBy contrast, the working conditions approach focuses on an individual’sThe Court stated that “the 43 million figure reflects an understanding thatBy using the 43 million figure, rather than the 160 million figure, the CourtSupreme Court held that “the determination of whether an individual isVaughn Murphy was first diagnosed with high blood pressure when he was a child. When he is on medication his “hypertension does not significantly restrict hisHe was hired by United Parcel Service to drive a commercial motor vehicle, whichAt the time he was hired, despite the fact that his blood pressure was so highAfter UPS discovered the error, Murphy wasRelying on its analysis in Sutton, the. Supreme Court affirmed the lower court’s decision that “when medicated,The Court explained that a “person. The Court continued that Murphy “is, at most, regarded as unable to performThis is insufficient as a matter of law, to prove thatInc. v. Kirkingburg Supreme Court also decided whether Hallie Kirkingburg, whose vision wasKirkingburg was erroneously certified by a doctor as meeting DOT’s basicThe DOT had a provision thatKirkingburg received a DOT waiver after he was fired, but his employer,Court next addressed Kirkingburg’s ability to compensate for and adapt to his. Again relying on Sutton, Justice. Souter explained that the Court saw “no principled basis for distinguishingIn other words, Kirkingburg’s ability to adapt and compensate for hisThe Court emphasized thatWhile the DOT standard involved here could be waived, the Supreme Court went onThe Supreme Court then reversed the lower appeals court decision, which affirmedFunctions of the Position: Judicial Estoppel This determination is not made in a vacuum but in many cases is affected byThe interplay between statements made by employeesIn applying for Social Security,Using the doctrine of judicial estoppel, employers have argued, oftenShortly before the employee was terminated, the employer questioned the employeeAfter the employee lost his job, he applied for state disability benefits and. In the SSDI benefits applications, the employee asserted that he was “unableFaced with similar factual scenarios highlighting the apparent inconsistencyIn GriffithAlthough the employer accommodated his physical restrictions, the employee.