Glossary of EEO Terms
The words and phrases contained in the glossary are generally used by the Office of Federal Contract Compliance Programs (OFFCCP), the field of employment discrimination law, and the Montgomery College Office of Equity and Diversity. They are defined or described for the purpose of providing a common understanding of terms associated with Equal Employment Opportunity, and Affirmative Action related activities. A primary resource used to compile the glossary is the U.S. Department of Labor, OFCCP web page, Affirmative Action in Higher Education: A Source Book (1997), and The Elements of Sexual Harassment (1999).
ADVERSE IMPACT: Under the "Uniform Guidelines on Employee Selection Procedures" of the Equal Employment Opportunity Coordinating Council.
"Adverse impact may be found when a selection process for a particular job or group of jobs results in the selection of members of any racial, ethnic, or sex group at a lower rate than members of other groups. The enforcement agencies will generally regard a selection rate for any group which is less than four-fifths (4/5) or eighty percent of the rate for the group with the highest selection rate as constituting evidence of adverse impact...... "
Depending on the size of the sample and other factors, however, the enforcement agencies could measure adverse impact other than by the "80% rule". In a particular case, of course, the final arbiter of the question would be the federal courts.
AFFECTED CLASS: Any group which continues to suffer the effects of past discriminatory practices. Affected class status must be determined by analysis or court decision.
AFFIRMATIVE ACTION: Actions, policies, and procedures to which a contractor commits itself that are designed to achieve equal employment opportunity. The affirmative action obligation entails: (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible, and (2) recruitment and outreach measures. It includes specific actions in recruitment, hiring, upgrading and other areas designed and taken for the purpose of eliminating the present effects of past discrimination, or to prevent discrimination.
AFFIRMATIVE ACTION PLAN: A written program, meeting the requirements of 41 CFR Part 60-2, 60-250.5 or 60-741.5, in which a contractor annually details the steps it will take and has already taken, to ensure equal employment opportunity. It includes written documentation that all persons have equal opportunities in recruitment, selection, appointment, promotion, training, discipline and related employment areas. The plan is tailored to the employer's work force and the skills available in the labor force. It prescribes specific actions, goals, timetables, and responsibilities, and describes resources to meet identified needs. The plan is a comprehensive results oriented program designed to achieve equal employment opportunity, rather than merely to assure nondiscrimination.
AFFIRMATIVE RECRUITMENT: Special recruitment efforts undertaken to assure that qualified protected class members are well represented in the applicant pools for positions from or in which they have been excluded or substantially underutilized. Such efforts may include contacting organizations and media with known protected class constituencies. Open job posting and advertising and "equal opportunity employer" statements necessary in many situations are matters of nondiscrimination rather than measures of affirmative recruitment.
AMERICAN INDIAN (NATIVE AMERICAN) OR ALASKAN NATIVE: A person having origin in any of the original peoples of North America and who maintains cultural identification through tribal affiliation or community recognition.
ANTI-NEPOTISM POLICY: A policy or practice that limits the simultaneous employment of two or more members of the same family.
APPLICANT FLOW: The number of applicants applying for a particular job over a given period of time, analyzed by protected class characteristics.
APPLICANT POOL: All people who have applied for a particular job or group of jobs during one period of opening. The collection of candidates from whom the selection or selections for available positions may be made.
APPROPRIATE ACTIONS: Actions an organization might implement to address violations of its policies and procedures.
ASIAN OR PACIFIC ISLANDER: A person having origin in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Islands and Samoa.
BLACK: A person, not of Hispanic origin, who has origin in any of the black racial groups of the original peoples of Africa.
BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ): A minimum qualification that is needed to be able to perform the duties of a particular job, which would otherwise be unlawful because of its discriminatory impact based on one's sex, religion, or national origin, etc. Examples are the requirement that an actor playing the part of a woman be a woman or that a minister of a particular religion be a member of that particular religion. The concept of BFOQ is interpreted very narrowly by both the EEOC and the federal courts. Age may be a BFOQ under the Age discrimination Employment Act of 1967. Race is never a BFOQ.
BURDEN OF PROOF: The requirement that to win a point or to have an issue decided in one's favor in a lawsuit one must show that the weight of evidence is on his or her side, rather than "in
the balance" on that question. Philosophically and traditionally in the courts, the person who brings the charges is responsible for providing evidence to support those charges. In civil rights litigation, the courts have generally required the plaintiff to establish a prima facie case of discrimination, at which point the burden of proof shifts to the defendant (e.g. the employer) to justify the existence of any disparities. Once the plaintiff has made the prima facie case, the defendant must provide an explanation since he or she is in a position to know whether he or she failed to hire a person for reasons that would exonerate him or her. (See "Prima Facie.")
BUSINESS NECESSITY: A legitimate business purpose that justifies an employment practice as valid and necessary for the effective achievement of the organization's objectives and the safe and efficient operation of the business.
CAREER LADDER: A hierarchy of jobs consisting of a series of more complex duties and responsibilities within a general occupational area.
CIVIL RIGHTS: Personal rights guaranteed and protected by the Constitution, i.e., freedom of speech, press, freedom from discrimination.
CLASS ACTION: A civil action brought by one or more individuals on behalf of themselves and "all others similarly situated" (or equivalent language). The purpose of a class action is to secure a judicial remedy which not only eliminates a wrong committed against an individual, and compensates him or her for the effects of that wrong, but which also provides such remedies for all others in a definable class who have suffered as a result of the same practice or practices. The technical legal requirements and definition of a class in federal court proceedings are contained in Rule 23 (b) of the Federal Rules of Procedure.
CODE OF FEDERAL REGULATIONS (CFR): The code contains Presidential executive orders and regulations based on those orders, federal laws, and other federal regulations. Related matters are grouped together. Title 41 CFR Chapter 60, for example, deals with the various Department of Labor EEO regulations and guidelines concerning federal government contractors.
COMMISSION ON HUMAN RIGHTS: The Maryland State agency established to receive, investigate and pass upon complaints alleging violations of the Human Rights Law.
COMPARABLE WORTH: Payment of wages based on the value of the work performed taking into consideration such factors as education, training, skills, experience, effort, responsibility and working conditions. This issue is raised particularly in comparing the salaries paid for occupations that are traditionally female to salaries paid for those that are traditionally male.
COMPLAINANT or CHARGING PARTY: A person who brings a complaint; in equal opportunity/affirmative action related actions, a person who brings a complaint of discrimination.
COMPLAINT: A written charge filed with OFCCP, EEOC, state, or federal agency by an employee, former employee, applicant for employment or by a third party alleging specific violations of the Executive Order, Section 503 or 38 U.S.C. §4212.
COMPLIANCE: Meeting the requirements and obligations imposed by Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, 38 U.S.C. §4212, and implementing regulations which mandate nondiscrimination and affirmative action.
COMPLIANCE AGENCY: Any local, state, or federal government agency which administers laws or regulations in the EEO field.
CONCILIATION: An informal voluntary agreement between an employer and a complainant sought by a state or local agency, OFCCP or the EEOC. A successful conciliation can result in back pay awards, reinstatement, and reform in the employment practices of an employer. A failed conciliation does not preclude further legal action by a complainant or an agency.
CONCILIATION AGREEMENT (CA): A binding written agreement between a contractor and OFCCP or EEOC that details specific contractor commitments to resolve the alleged violations set forth in the agreement.
CONSTRUCTIVE DISCHARGE: An employee's involuntary resignation resulting from the employer making working conditions for employee so intolerable that a reasonable person would have felt compelled to resign. OFCCP will assert that an employee was constructively discharged in violation of the Executive Order, Section 503, or 38 U.S.C. § 4212 where it finds that (1) a reasonable person in the employee's position would have found the working conditions intolerable; (2) the employer's conduct which constituted the violation against the employee created the intolerable working conditions; and (3) the employee's involuntary resignation resulted from the intolerable working conditions.
CONTINUING VIOLATION: The continuing violation theory has been analyzed as encompassing three separate sub-theories, each applicable to a distinct fact situation; (1) a series of individual related discriminatory acts, at least one of which must have occurred within 2 years prior to notice of a compliance review, 180 days before the complaint of employment discrimination; (2) systemic discrimination where the employer has maintained a policy or practice which discriminates against a class; and (3) present effects of past discrimination - where an individual or a class is suffering residual effects of discriminatory conduct which occurred prior to the limitation period but was not the subject of a timely charge.
DIFFERENTIAL VALIDATION: Validation of test at different score levels for different classes of people. This is not tantamount to "lowering standards" for one or more groups to favor them over others. Differential validation occurs only where lower test scores by one class actually do predict a level of job performance equivalent to that predicted by the higher scores of another class.
DIRECT EVIDENCE OF DISCRIMINATION: A method of proof in which evidence on its face establishes a discriminatory reason for an employment decision, without inference or presumption. Direct evidence is evidence that on its face shows an intent to discriminate. It may be based upon testimony or any reliable documentation such as a copy of a help wanted ad that specifies "males only."
DISABLED INDIVIDUAL: See Individual With a Disability.
DISABLED VETERAN: A person entitled to disability compensation under laws administered by the U.S. Veteran's Administration for a disability rate of 30 percent or more, or a person whose discharge or release from active duty was for a disability incurred or aggravated in the line of duty.
DISCOVERY: In trial practice, the pre-trial devices that can be used by a party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial. Tools of discovery include depositions upon oral and written questions; written interrogatories; requests for production of documents or things; requests for physical and mental examinations; and requests for admission.
DISCRIMINATION: An intentional or unintentional act which adversely affects employment opportunities because of race, color, religion, sex, handicap, marital status, or national origin, or other factors such as age (under particular laws.) The failure to treat equals equally; in equal opportunity/affirmative action parlance, the unequal treatment or categorizing is either based on race, sex, religion, age, or physical or mental disability or has the effect of disparate treatment for any of those classes. Unlawful discrimination may be either intentional or not intentional. See Age Discrimination in Employment Act of 1967.
DISPARATE EFFECT OR DISPARATE IMPACT: The result of an employment policy, practice, or procedure that, in practical application, has less favorable consequences for a protected class than for the dominant group.
DISPARATE IMPACT: A theory or category of employment discrimination. Disparate impact discrimination may be found when a contractor's use of a facially neutral selection standard (e.g., a test, an interview, a degree requirement) disqualifies members of a particular race or gender group at a significantly higher rate than others and is not justified by business necessity or job relatedness. An intent to discriminate is not necessary to this type of employment discrimination. The disparate impact theory may be used to analyze both objective and subjective selection standards. Same concept as adverse impact. (See definition of adverse impact.)
DISPARATE TREATMENT: Employment practices such as the use of tests or educational requirements, fair and neutral on their face, which are applied or administered in an unfair manner. An example would be using an "old boy network" to hire for jobs even though the positions have been posted.
EEO COMPLAINT: A written charge of discrimination filed with a state or federal agency and/or verbal or written charge filed with a designated College official or the Office of Equity and Diversity by an employee, former employee, applicant for employment, student, or by a third party alleging specific violations of the Executive Order, Title VI, VII, or IX regulation, Section 503 or 38 U.S.C. §4212. The charge might include allegations regarding a violation of protected rights and privileges, terms and conditions of employment or the educational environment.
EEO PROCEDURE: In-house resolution of employees' and/or students' complaints of discrimination required under Title VI, VII, and IX regulations for students and under several other federal regulations for employees. Usually includes a series of "steps" in the process.
EEO-1 REPORT: The Equal Employment Opportunity Employer Information Report (EEO-1): An annual report filed with the Joint Reporting Committee (composed of OFCCP and EEOC) by certain employers subject to the Executive Order or to Title VII of the Civil Rights Act of 1964, as amended. This report details the sex and race/ethnic composition of an employer's work force by job category. (Also termed Standard Form 100.)
EEO-2 REPORT: The Equal Employment Opportunity Apprenticeship Information Report: A chronological list of names of all persons who have applied to an apprenticeship program. The information needed to fill out the report must be kept by the apprenticeship sponsor; however, the EEOC no longer requires the filing of EEO-2 reports.
EEO-3 REPORT: The Equal Employment Opportunity Labor Union Report (EEO-3): A report filed biennially in even-numbered years by labor unions. This report is filed with the EEOC Survey Branch and contains information on the sex and race/ethnic composition of union membership and referrals for employment.
EEO-4 REPORT: The Equal Employment Information Report (EEO-4): A report filed by State and local governments with the State and Local Reporting Committee (composed of EEOC, Health and Human Services [HHS], Department of Energy [DOE], Housing and Urban Development [HUD], Department of Transportation [DOT], Office of Personnel Management [OPM], and OFCCP). This report sets forth the sex and race/ethnic composition of the work force by job category and annual salary. Frequency of reporting for political jurisdictions varies with their number of full-time employees, as follows: 100 or more, annually; 50 to 99, every other year; 25 to 49, every 4 years; 15 to 24, every 6 years.
EEO-5 REPORT: The Equal Employment Opportunity Elementary-Secondary Staff Information Report (EEO-5): A report filed with the School Reporting Committee (composed of EEOC, the Department of Education/Office of Civil Rights and the National Center for Education Statistics). This report details the sex and race/ethnic composition, by job category, of elementary and secondary school staffs. Frequency of reporting for school districts varies with their number of pupils, as follows: 1,800 or more, every other year; 900-1,799, every 4 years; 450-899, every 6 years; 250-449, every 8 years.
EEO-6 REPORT: The Equal Employment Opportunity Higher Education Staff Information Report (EEO-6): A report filed biennially in odd-numbered years with the Higher Education Reporting Committee (composed of OFCCP, Department of Education/Office of Civil Rights and EEOC) by colleges and universities. It details by job category and salary the sex and race/ethnic composition of their faculty and staffs.
EMPLOYEE: Under Title VII of the Civil Rights Act of l964, as amended: " ... an individual employed by an employer except that the term 'employee' shall not include any person elected to public office in any State or political subdivision of any State ... or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State Government, governmental agency or political subdivision."
EMPLOYER: Under Title VII of the Civil Rights Act of 1964, as amended: "... a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." The U.S. Government and its wholly owned corporations, Indian tribes, certain departments of the District of Columbia Government, and tax exempt, bona fide private membership clubs are excluded from the definition.
EMPLOYMENT OFFER: An employer's offer of employment to an individual, usually for a specific job.
EQUAL EMPLOYMENT OPPORTUNITY: Where all personnel activities are conducted so as to assure equal access in all phases of the employment process. Employment decisions are based solely on the individual merit and fitness of applicants and employees related to specific jobs, without regard to race, color, religion, sex, age, national origin, handicapping conditions, marital status or criminal record.