THE AFFIRMATIVE OUTLOOK
Volume 1, Issue 1, July 2005
“Taking Affirmative Action to Achieve Equal Opportunity”
From the Director…
In the Department of Institutional Equity and Compliance, we understand the importance of keeping the campus abreast of legislative updates and changes. Our aim is to seek the most appropriate avenues to do this. Although technology has made it easy for us to access information with the touch of a button, most employees do not have the time to wade through volumes of information, particularly lengthy policies and guidelines, in search of answers to questions that impact daily decision making. Therefore, it is important to have on hand specific reference information that can be accessed quickly.
This issue of The Affirmative Outlookprovides some general information on several employment and education statutes that impact the institution. We have included a brief synopsis of the provision of each statute and have included the basic information applicable to higher education.
We hope this information will be useful as we work together toaddress unlawful discrimination and harassment.
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I. Age Discrimination in Employment Act of 1967, as Amended
The Age Discrimination in Employment Act of 1967 (ADEA), as amended, protects individuals who are 40 years of age or older. The ADEA has no upper age limit. The statute covers employees with 20 or more employees, employment agencies, and labor organizations as well as the agents of these entities. The term “employer” includes state and local governments.
The ADEA prohibits an employer, employment agency, or labor organization from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of his/her age. It also prohibits covered entities from depriving an individual of employment opportunities or taking any other adverse action against an individual because of his/her age.
In addition, it is illegal for a covered entity to retaliate against an individual because he/she has opposed unlawful age discrimination or has exercised his/her rights under ADEA, including filing a charge of discrimination, testifying, or participating in any way in an ADEA investigation or litigation.
ADEA allows state and local governments to impose certain maximum hiring ages and mandatory retirement ages for firefighters and law enforcement officers. This expired on December 31, 1993. It was reenacted by Congress, as amended, on September 30, 1996. The effective date of reenactment is retroactive to December 31, 1993.
ADEA previously permitted the mandatory retirement of tenured faculty members at institutions of higher learning who attained the age of 70. This section automatically expired on December 31, 1993 and has not been reenacted.
On October 2, 1998, Congress passed the Higher Education Amendments of 1998, which was signed by the President on October 7, 1998. Under this law, which in part amends the ADEA, institutions of higher education may offer tenured faculty certain supplemental voluntary retirement benefits that are reduced or eliminated on the basis of age.
The Civil Rights Act of 1991 extended ADEA coverage to some previously exempt state/local employees.
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II. Americans With Disabilities Act of 1990
The Americans With Disabilities Act of 1991 (ADA) is a federal antidiscrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities. ADA seeks to ensure access to equal employment opportunities based on merit. It does not guarantee equal results, establish quotas, or require preferences favoring individuals with disabilities over those without disabilities. The ADA thus establishes a process in which the employer must assess a disabled individual’s ability to perform the essential functions of the specific job held or desired.
While ADA focuses on eradicating barriers, the ADA does not relieve a disabled employee or applicant from the obligation to perform the essential functions of the job. To the contrary, the ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled. However, where the individual’s functional limitation impedes such job performance, an employer must take steps to reasonably accommodate, and thus help overcome the particular impediments unless to do so would impose an undue hardship. Such accommodations usually take the form of adjustments to the way a job customarily is performed, or to the work environment itself.
The process of identifying whether, or to what extent, reasonable accommodation is required should be flexible and involve both the employer and the individual with a disability. Of course, the determination of whether an individual is qualified for a particular position must necessarily be made on a case-by-case basis. No specific form of accommodation is guaranteed for all individuals with a particular disability. Rather, an accommodation must be tailored to match the needs of the disabled individual with the needs of the job’s essential functions. The case-by-case approach is essential if qualified individuals of varying abilities are to receive equal opportunities to compete for an infinitely diverse range of jobs.
III. Civil Rights Act of 1991
The Civil Rights Act (CRA) of 1991 amended the CRA of 1964 to strengthen and improve federal civil rights laws, to provide for punitive damages in cases of intentional employment discrimination, to raise the ceiling for damages for discrimination claims, to clarify provisions regarding disparate impact actions, to set up a Glass Ceiling Commission to recommend ways to remove barriers to women and minorities seeking advancement, to ban adjusting test scores by race (race norming), and for other purposes.
The Act reversed the following supreme court decisions and restored many of the rights eroded by these decisions.
Wards Cove Packing v. Antonio, 1989
Price Waterhouse v. Hopkins, a 1989
Patterson v. McLean Credit Union,1989
Martin v. Wilks, 1989
Lorance v. AT& T, 1989
Equal Employment Opportunity Commission (EEOC) v. Aramco, 1991
West Virginia University Hospitals v. Casey, 1991
IV. Equal Pay Act of 1963
The Equal Pay Act (EPA) requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal.
Specifically, the EPA provides that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort, and responsibility and that are performed under similar working conditions within the same establishment. The law prohibits an employer from reducing the wages of either sex to comply with the law. A violation may exist where a different wage is paid to a predecessor or successor employee of the opposite sex.
The law against compensation discrimination includes all payments made to or on behalf of employees as remuneration for employment. All forms of compensation are covered, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.
The law does not apply to pay differences based on factors other than sex, such as seniority or merit. Nor does it apply to systems that determine wages based upon the quantity or quality per item produced or processed.
V. Executive Order 11246, as amended by Executive Order 11375
Executive Order (EO) 11246 prohibits employment discrimination and directs federal contractors to take affirmative action to seek out minorities who, traditionally, have been excluded from the work force. This order was amended by EO 11375 to include women who were also determined to have been excluded from the work force. The rationale for affirmative action was to ensure the total integration of the work force with specific, result-oriented procedures designed to remove barriers,remedy the effects of past discrimination, and eliminate all discriminatory practices.
VI. Pregnancy Discrimination Act
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities limitations.
An employer cannot refuse to hire a woman because of her pregnancy- related condition as long as she is able to perform the major functions of the job. An employer cannot refuse to hire her because of prejudices against pregnant workers or the prejudices of co-workers, clients, or customers.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, an employer may use any procedure used to screen other employees’ ability to work. For example, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by the pregnancy related conditions to submit such statements.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; examples include providing modified tasks, alternative assignments, disability leave or leave without pay.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Leave for child care purposes is not covered by the Pregnancy Discrimination Act. However, Title VII requires that leave for child care purposes be granted on the same basis as leave granted to employees for other non-medical reasons, such as non job-related travel or education.
Any health insurance covered by an employer must cover the expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required except where the life of the mother is endangered.
Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions. No additional, increased, or larger deductible can be imposed.
If a health insurance plan excludes benefit payments for pre-existing conditions when the insured’s coverage became effective, benefits can be denied for medical costs arising from an existing pregnancy. Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.
Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
VII. Rehabilitation Act of 1973, as amended
The Rehabilitation Act of 1973 prohibits discrimination against handicapped (term used when statute enacted; term now use is disabled) persons, (students and employees) in education and employment. The Act sets affirmative action obligations for federal contractors and subcontractors and for the advancement in employment of disabled individuals.
The Act states that no otherwise qualified disabled individual shall , solely by reason of disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
According to the Act, “disability” includes physical or mental impairment, which substantially limits one or more of an individual’s major life activities. Qualified individuals are those capable of learning or being employed with reasonable accommodation to the particular disability.
The Act established the definition of an “individual with a disability” as being a person who:
--has a physical or mental impairment which substantially limits one
or more of such a person’s major life activities;
--has a record of such an impairment; or
--is regarded as having such an impairment.
Section 503 of the Rehabilitation Act
Section 503 of the Rehabilitation Act of 1973, as amended by the Rehabilitation Act Amendments of 1974, requires that government contractors and subcontractors take affirmative action to employ and advance in employment qualified disabled individuals at all levels of employment, including the executive level. Such action shall apply to all employment practices, including but not limited to the following: hiring; upgrade, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
Section 503 defines “qualified individual with a disability” as one who, with or without reasonable accommodation, can perform a particular job. The Act requires federal contractors to take affirmative action to hire and promote individuals with disabilities.
Section 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act provides that “no otherwise qualified disabled individual in the United states…shall, solely by reason of…disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The Act prohibits all employers that receive federal funding from discriminating against qualified individuals with disabilities. Section 504 coverage extends to the full range of employment activities, including job application and recruiting procedures; hiring and discharge; employee compensation and fringe benefits; job assignment; advancement; annual and sick leave or other types of leave; job training; social and recreational activities; and other terms, conditions, and privileges of employment.
Employers are not required by Section 504 to take affirmative action in employing people with disabilities. There is no requirement to recruit, hire, or promote individuals with disabilities to diversify the work force, Rather, employers are required to modify their hiring processes and employment practices so that persons with disabilities have the same opportunities as individuals without disabilities.
VIII. Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964 (CRA) states that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
Federal financial assistance includes, but is not limited to, grants and loans of federal funds, grants or donations of federal property, details of federal personnel, or any agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
Federally assisted programs address such broad and diverse areas as elementary, secondary, and higher education; health care; social services; public welfare; public transportation; parks and recreation; natural resources and the environment; employment and job training; housing and community development; law enforcement and administration of justice; agriculture and nutrition; financial aid; admissions;
IX. Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (CRA) prohibits any form of discrimination in employment on the basis of race, color, sex, national origin, or religion.
The law states that it shall be an unlawful employment practice for an employer to
Failor refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment.
Limit, segregate, or classify an employee in any way which would deprive or tend to deprive the individual of employment opportunities or otherwise adversely affect status as an employee.
Fail or refuse to refer for employment, or otherwise to discriminate against, any individual or to classify or refer for employment any individual.
Exclude or expel from membership or otherwise discriminate against any individual.
Limit, segregate, or classify membership or to classify, fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive the individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect status as an employee or an applicant for employment.
Cause or attemptto cause an employer to discriminate against an individual.
Provide or deny admission to training or retraining, including on- the-job training in any program established to provide apprenticeship or other training.
X. Vietnam Era Veterans’ Readjustment Assistance Act of 1974
The Vietnam Era Veterans’ Readjustment Assistance Act protects Vietnam-era and qualified special disabled veterans from discrimination in employment. Employers must provide equal employment opportunity, refrain from discrimination, and take affirmative action to employ and advance protected veterans in employment. This means to take positive steps in all employment practices to enable veterans to be considered for employment opportunities, including hiring, promotions, training, pay and for other purposes.
A Vietnam-era veteran is a person who (1) served on active duty for more than 180 days, any part of which occurred between August 5, 1964 and May 7, 1975 and was discharged or released with other than a dishonorable discharge, or (2) was discharged or released from active duty for a service connected disability if any part of such active duty was performed between August 5, 1964 and May 7, 1975. Veterans meeting the above criteria who served in the Republic of Vietnam between February 28, 1961 and May 7, 1975 are also protected.
A special disabled veteran is (1) a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more, or rated at 10 to 20 percent if it has been determined that the individual has a serious employment disability; or (2) a veteran who was discharged or released from active duty because of a service-connected disability.