Employers are prohibited from discriminating against employees because of their:
Discrimination law applies to all of employment decisions, including an employer’s decision to hire, fire, promote, transfer, compensate, refer, or discipline employees.
Laws prohibiting discrimination include, but are not limited to:
The Massachusetts Fair Employment Practices Act makes it unlawful for any:
to discriminate against any employee on the basis of:
Under this statute, an employer may not take any employment action based on an employee’s protected class status. An employer must have six or more employees to be covered by this law. Social clubs and fraternal associations or corporations are exempt from coverage.
Additionally, Title VII of the Civil Rights Act (Title VII), applies to public and private employers that have 15 or more employees, and prohibits employment discrimination based on the following protected characteristics:
Under both statutes, it is illegal to take any employment action based on an employee’s protected-class status or to discriminate in any aspect of employment including, but not limited to:
Massachusetts anti-discrimination law closely parallels Title VII, however, it includes some differences:
Employees who file claims under Title VII or Massachusetts law use one of two theories:
In a disparate treatment claim, an employee asserts that both:
When an employee brings a disparate treatment claim under Title VII, he or she alleges that the employer treated him or her differently than others because of his or her connection to a protected class such as race or gender. A female may bring a claim under Title VII alleging that the employer treated her differently than males, and that the difference in treatment was because of her gender.
An employee cannot succeed with a disparate treatment claim simply by showing that he suffered an adverse employment action (such as being fired or demoted). The central issue in a disparate treatment claim is whether the employer’s actions were motivated by discrimination, and, thus, an employee must show discriminatory intent.
Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent without inference or presumption. Examples of direct evidence include:
An employee may rely solely on direct evidence to prove intentional discrimination. If an employee direct evidence is sufficient to establish an inference of discrimination, the employer typically defends itself by one or more of the following approaches:
Oftentimes, an employee does not have direct evidence of an employer’s discriminatory intent and therefore requires circumstantial evidence to prove his or her claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but allows the judge or jury to infer the existence of the fact. For instance, a female applicant suing an employer for sex discrimination could produce circumstantial evidence in the form of records showing that the company has never hired a woman for the position the applicant sought, despite having had several qualified female applicants over the years.
If an employee brings a discrimination claim based on circumstantial evidence, the lawsuit proceeds in three phases:
A mixed-motive case is one where the employee alleges that the employer acted in a discriminatory manner, and the employer claims that, while discriminatory intent may have been a motivating factor, the employer would have made the same employment decision had the discrimination not occurred.
Employers must be extremely careful in these types of cases. The employer may be able to avoid damages in the form of back pay and front pay by showing it would have made the same decision without discriminatory bias, however, a court may still award attorney’s fees to the employee if the discriminatory bias was involved in the decision-making process.
In a disparate impact claim, an employee claims that an employer’s seemingly neutral policy or practice is unlawful because it has a significant adverse impact upon a protected group. The fact that the employer had no discriminatory intent does not shield an employer from liability when its policy results in discrimination toward some of its employees.
Similar to a disparate treatment claim, the employee must prove that a particular policy has a disproportionately adverse impact on a protected class. An employee often relies on statistical evidence to prove this type of case, such as selection rates, pass/fail rates on qualifying exams, and population/workforce comparisons. Simply put, a plaintiff must show that a particular employment practice produced discriminatory results.
Neither the language of Title VII nor case law states the quantity of statistical evidence that is sufficient to establish a “disproportionate impact.” Courts generally make this determination on a case-by-case basis.
The Equal Employment Opportunity Commission (EEOC) and private parties enforce Title VII. Before bringing a claim in federal court, an employee must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event. If the employee alleges that the employer discriminated against him or her on an ongoing basis, the employee must file his charge within 180 days of the last occurrence of the alleged discriminatory practice.
After a party files a charge, the EEOC investigates it using a “reasonable cause” standard. This standard inquires whether it is “more likely than not” that discrimination took place. The determination focuses on whether the employee established an inference of discrimination, and whether the employer’s purported reason for its employment decision is the real reason. When the EEOC determines that the employee meets the reasonable cause standard, it attempts to eliminate the unlawful discrimination through a mediation between the parties. When the EEOC determines that the reasonable cause standard has not been met, it issues notice to the employee of his or her right to file a private lawsuit (referred to as a “right-to-sue letter”). At that point, if an employee chooses to bring a civil suit, he or she must do so within 90 days of the receipt of the notice.
Remedies under Title VII aim to eliminate discrimination and to “make whole” the individual victim of discrimination. Examples of available remedies include:
As discussed earlier, employees may file claims based on race discrimination under Title VII of the Civil Rights Act. However, employers should be familiar with another source of protection: Section 1981 of the Civil Rights Act (Section 1981). An employee typically invokes Section 1981 to avoid Title VII’s procedural requirements, and in some cases, to gain access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race. In addition, both laws protect against racial harassment and retaliation.
Title VII prohibits discrimination based on national origin. National origin discrimination is differential treatment of an employee because of his or her ethnic background. Title VII also protects employees who associate with persons of a particular national origin. Thus, according to EEOC guidelines, Title VII’s protections cover:
The Immigration Reform and Control Act (IRCA) makes it unlawful for any employer to hire a person who is not legally authorized to work in the United States. Because this law may cause employers to discriminate against foreign-looking or foreign-sounding job applicants, IRCA also contains two anti-discrimination provisions, which apply to employers with four or more employees:
Under Title VII, a religious discrimination claim arises when an employer fails to accommodate an employee’s religious beliefs, forcing the employee to choose between his or her religion and his or her job. Thus, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices. A religious discrimination claim may also be based on religious harassment or discrimination in the workplace.
Courts hold that a person practices a religion when the individual has a sincerely held religious belief, regardless of whether this belief is approved or required by an established church or other religious institution. Therefore, in addition to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, courts protect other religious belief systems, so long as the employee sincerely believes in his or her chosen religion.
A plaintiff who claims his or her employer discriminated against him or her by failing to accommodate his or her religious beliefs must establish three elements:
If the plaintiff establishes these three elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or that it was unable to provide an accommodation because to do so would create more than a minimal cost for the employer.
The law does not require an employer to provide the employee with the “best accommodation” or even the accommodation preferred or proposed by the employee. Rather, an employer need only provide the employee with a reasonable accommodation. Thus, the majority of legal claims based on religious accommodation focus on whether the employer’s accommodation to the employee is reasonable.
An employer does not have to implement any accommodation at all, if doing so would result in an undue hardship. The Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal burden on the operations of the employer’s business. The reasonableness of an accommodation depends on the facts of each case.
Generally, an employer should make reasonable adjustments to the work environment to permit an employee to practice his or her religion. The EEOC provides examples of common religious accommodations:
Title VII prohibits employment decisions based on sex or sexual stereotypes. Sex discrimination is differential treatment of an employee based on his or her gender. Sex discrimination takes many forms. The following examples are common claims of sex discrimination:
Under Title VII, an employer may not make any employment decisions based on sex, nor may it implement practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.
A bona fide occupational qualification is a quality or attribute (such as sex) that an employer may consider when hiring and retaining employees, even though consideration of the quality in other contexts would be discriminatory. For instance, a manufacturer of men’s clothing may lawfully argue that it will not hire women to model its clothes. The fact that an applicant is female disqualifies her from consideration.
In order to establish a BFOQ defense, the employer must demonstrate:
To determine whether a sex-based practice is lawful, courts consider:
Generally, the court does not consider customer preference to be sufficient reason for a BFOQ.
Several Massachusetts laws prohibit employers from paying employees differently on the basis of their sex. First, the Massachusetts Fair Employment Practices Act prohibits an employer from discriminatory compensation on the basis of an employee's membership in any protected category, including sex. Second, the Massachusetts Equal Pay Act (MEPA) specifically requires equal pay for work of comparable character, prohibits pay discrimination based on gender, and provides employees with a cause of action for discriminatory compensation on the basis of gender. In 2016, the Massachusetts legislature enacted (and the Governor signed) a new equal pay law, entitled the "Act to Establish Pay Equity" (Pay Equity Law) which will go into effect on July 1, 2018.
Under the new Pay Equity Law, comparable work is defined as work that is "substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions." This definition arguably broadens the pre-July 2018 MEPA standard which the courts generally interpreted to require not just substantially similar skill, effort, and responsibility, but also comparable content.
The new Pay Equity Law contains a number of other significant provisions that affect employers with employees in Massachusetts. For example, under the Pay Equity law:
On March 1, 2018, the Massachusetts Attorney General issued detailed guidance on the Pay Equity Law. The guidance provides, among other things, that:
The guidance provides helpful Information on the attorney general’s enforcement provision on other pay equity law topics, as well as two appendices that provide helpful guidance on how to conduct self-evaluations and a checklist for reviewing policies and practices.
In addition to liability under state law, as described earlier, employers can also be held liable under the federal Equal Pay Act (EPA) which prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs of similar skill, effort, and responsibility. Under the Act, the term “wages” encompasses all forms of compensation. Thus, when an employer institutes differential fringe benefits, an employee may bring a claim under this Act, even when all other compensation is equal.
To prevail on a federal Equal Pay Act claim, an employee must be able to identify an employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts do not compare wages of employees at separate places of business unless the plaintiff shows that both:
When determining whether two jobs are equal, the court assesses the content of the job, not the formal job description. Thus, courts will consider the following factors:
An employer may defend against a federal Equal Pay Act claim by proving that the difference in pay rate is based on:
An employer should note that when it corrects a pay differential, it should do so by increasing the lower-paid employee’s compensation, not be decreasing the higher-paid employee’s compensation.
The EEOC enforces the Equal Pay Act. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing a claim. Employees must file a claim under the EPA within two years of a violation.
An employee may also claim compensation discrimination under Title VII of the Civil Rights Act (Title VII). The Lilly Ledbetter Fair Pay Act expanded the definition of a “violation” under Title VII to include more than merely a discriminatory pay decision. Under this law, a violation occurs with each payment of wages, benefits, or other compensation that is the result of a discriminatory pay decision. Therefore, an employee’s claim for compensation discrimination under Title VII is timely so long as the employee files it within 180 days of his or her last paycheck – even if the actual discriminatory pay decision occurred several years ago.
Because pregnancy and childbirth are sex-linked characteristics, Massachusetts courts hold that any actions of an employer that adversely affect an employee because of her pregnancy, childbirth, or other requirement of parental leave may be sex discrimination. Under Massachusetts law, employers may not treat employees and applicants who are affected by pregnancy less favorably than employees who are affected by other conditions but who are similarly unable to work.
The Massachusetts Commission Against Discrimination advises employers that they may not:
The employer should also be aware that medical conditions that accompany a pregnancy may rise to the level of a disability under Massachusetts law. Accordingly, an employer should treat a pregnant employee as it would treat employees who are temporarily incapacitated or disabled for other medical reasons.
The Massachusetts Pregnant Workers Fairness Act, which went into effect on April 1, 2018, applies to employers with six or more employees, and makes it unlawful for those employers to deny reasonable accommodations to a prospective or current employee for any condition related to pregnancy, childbirth, or related conditions, if the prospective or current employee requests such an accommodation. Additionally, the Act makes it unlawful for employers:
The Act also requires employers to notify employees of these rights. Employers must provide written notice to:
Employers should also be aware of the federal Pregnancy Discrimination Act (PDA), which prohibits employers from intentionally discriminating against pregnant employees or maintaining policies that adversely affect pregnant employees.
The PDA prohibits discrimination because of pregnancy or childbirth. In addition, a court recently held that the PDA protects women from discrimination based on the decision to have an abortion.
The PDA does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For instance, an employer may dismiss an employee for excessive tardiness, even if the tardiness is caused by the employee’s pregnancy-related morning sickness. However, an employer should be mindful of reasonable accommodation under the ADA in such circumstances.
The PDA requires that an employer provide pregnant women with at least the same benefits and leave time as other employees. For instance, if an employer grants short-term disability to all employees, it must allow a pregnant woman sufficient leave to recover from the childbirth. Likewise, if an employer allows employees to take leave for personal or family reasons, it must grant this same leave to pregnant employees.
The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must:
An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to claims if the child is born with injuries that can be tied to the hazardous environment The Supreme Court has held that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from liability.
Before June 2020, it was unclear whether employment discrimination on the basis of sexual orientation or transgender status was permissible under federal law. That changed on June 15, 2020, when the U.S. Supreme Court ruled that Title VII of the Civil Rights Act does in fact prohibit discrimination in the workplace on the basis of sexual orientation and transgender status.
Massachusetts law, by contrast, has long provided protection against employment discrimination based on sexual preference and on gender identity. The law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” According to guidance issued by the Massachusetts Commission Against Discrimination in September 2016, gender identity protections encompass individuals who are transgender, as well as persons whose gender identity is consistent with their assigned sex at birth but who do not adopt or express traditional gender roles, stereotypes or cultural norms.
The law forbids an employer from discriminating in any aspect of employment, including:
No provision of Massachusetts law prohibits restrooms from being designated by gender. The MCAD, however, has taken the position that prohibiting an individual from using a restroom or other sex-segregated facility consistent with their gender identity is a violation of the law. The EEOC has also ruled that denying an employee access to a restroom corresponding to the employee's gender identity constitutes unlawful sex discrimination. Accordingly, both agencies have advised employers to provide their employees with access to any sex-segregated facility (e.g., bathrooms and locker rooms) based on the employee's stated gender identity.
Employers are prohibited from engaging in age discrimination by both federal and Massachusetts laws. The relevant federal law is the Age Discrimination in Employment Act (ADEA), while the Massachusetts Fair Employment Practices Act includes the state prohibition on age discrimination.
The ADEA and Massachusetts law protect individuals who are 40 years of age or older from employment discrimination or retaliation based on age. These laws apply to both employees and applicants in public and private employment.
Both laws make it unlawful for an employer to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including:
The ADEA applies to employers with 20 or more employees, however, Massachusetts law applies to employers with six or more employees. The number of individuals employed at the time discrimination occurred (not the year in which the charge was filed or the action is filed in court) determines whether the number of employees is sufficient to invoke the protection of law.
Before an employee may bring a claim, she or he must file a charge with the respective administrative agency as a prerequisite. To proceed to court with a claim, the employee must file its charge with the EEOC within 180 days of the alleged discriminatory act or within 300 days with the MCAD.
Although plaintiffs may bring claims under the ADEA based on a disparate impact theory, most plaintiffs bring ADEA discrimination cases under the disparate treatment theory. Age discrimination claims have the same burdens of proof as those established for other forms of discrimination. Thus:
To establish an inference of age discrimination, a plaintiff must prove:
The bona fide occupational qualification (BFOQ) is a defense in which the employer concedes that age was considered in an employment practice or policy, but asserts that using age as a qualification is “reasonably necessary to the normal operation of the particular business.” The Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:
The employer may demonstrate this second factor either by demonstrating that it has a substantial basis for believing that nearly all employees above a certain age lack the qualifications required for the position, or that it would be very impractical for the employer to test each individual employee to determine if he or she has the necessary qualifications.
The ADEA permits employers to implement a bona fide seniority system (such as a system that provides benefits based on length of job tenure) so long as the employer does not use the system to evade the purposes of the ADEA. To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age. Seniority systems typically favor rather than discriminate against older workers, and, thus, employees rarely challenge termination decisions based on them.
Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA), which amended the ADEA to specifically prohibit employers from denying benefits to older employees. Under the OWBPA, any age-based reductions in an employer’s employee benefit plans must be justified by significant cost considerations. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
The OWBPA includes a few exceptions to this cost-justification defense. For instance, while an early-retirement incentive program is generally legal, it will be invalid if it is involuntary or otherwise inconsistent with the purposes of the ADEA. The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan for any age-related reason.
An employment decision based on good cause or a reasonable factors other than age (RFOA) is lawful. An employer uses this defense when it terminates an employee for a legitimate business reason, such as poor performance. Courts have held that factors that correlate with age (such as pension eligibility, tenure, or seniority) typically fail to constitute an RFOA.
The ADEA and Massachusetts law allow an employer to enforce mandatory retirement at age 65 for “bona fide executives” or “high policymaking” employees. When determining whether a particular employee qualifies, courts consider the nature of the employee’s duties, responsibilities, and authority. The law requires that the employee have served in the bona fide executive position or the high policymaking position for at least two years, and the employer may require retirement only if the employee is entitled to an immediate, non-forfeitable, annual retirement benefit of at least $44,000 from the employer.
The central issue raised in ADEA claims involving a reduction in force (RIF) is the validity of the employer’s determination of which employees to layoff. There are several criteria on which employers may lawfully base layoff selections. Examples include:
Employers invite liability during a RIF when they fail to articulate clear selection standards and review processes. Thus, it is important for employers to implement layoff procedures and to provide documentation justifying each termination based on factors other than age.
Employers should confirm that supervisors are providing accurate evaluations to employees, and are documenting the process. Employees should know if they are performing poorly, so that they are not blindsided during a RIF.
Employers should use two techniques to avoid the claims based on RIFs:
At an employer’s request, an individual may agree to waive any age-related claims he may have under the ADEA and state law in exchange for some benefit to which he or she is not otherwise entitled. The OWBPA imposes specific requirements for releases of these claims.
According to the OWBPA, in order for a waiver that is part of an individual separation to be valid, it must:
If an employer requests the waiver in connection with a termination or exit incentive program offered to a group of employees, the requirements are more extensive. In addition to these requirements, each employee must be given at least 45 days to consider the agreement. In addition, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of the class of eligible employees, the specific eligibility requirements, any applicable time limits on participation, the job titles and ages of all employees eligible or selected for the program, and the ages of all employees in the same job classification or organizational unit who are not eligible or selected.
The ADEA tries to prevent employers from forcing employees into early retirement for the economic benefit of the company. Thus, while a release may prevent a separating employee from filing a lawsuit based on claims under the ADEA, the employee may challenge the validity of the release itself.
The Genetic Information Nondiscrimination Act (GINA) and the Massachusetts Fair Employment Practices Act (FEPA) both prohibit discrimination based on an employee’s genetic information. The intent of these laws is to encourage employees and others to take advantage of genetic testing as part of their medical care.
The GINA and the FEPA prohibit employers from requesting, requiring, or purchasing genetic information of employees or their family members, and further prohibit employers from disclosing or making employment decisions on the basis any such information it has. The laws apply to the following employers:
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.
It is unlawful to retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
The definition of an employee and a family member is broader under the GINA than it is under other laws. The term “family members,” for instance, extends to an individual’s fourth degree relatives. Thus, the term includes such distant relatives as great-great-grandparents, and children of first cousins. The term “family members” also includes an employee’s adopted family members even though they do not share a common genetic makeup with the employee.
“Genetic information,” includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Genetic information about a family member’s disease or disorder is considered one’s “family history.”
“Genetic tests” include any analysis of an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes. Generally, these can include any number of tests that may reveal an increased risk of acquiring a particular disease. Tests that are not considered genetic tests are tests for HIV, cholesterol, and tests for the presence of drugs or alcohol.
Employers generally may not request or require genetic information from their employees, even non-deliberately. According to the EEOC’s regulations, a request for genetic information includes “conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information,” as well as “actively listening to third-party conversations” and “making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”
There are circumstances when an employer may legitimately come into possession of genetic information without violating GINA’s prohibition on requesting, requiring, or purchasing genetic information. However, any such acquired information must be kept confidential and not used by the employer.
These circumstances include:
Whenever lawfully requesting information (such as on a physician’s confirmation of medical condition form) employers should include the following disclaimer on the request:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Whenever this notice is properly given it will provide a safe-harbor for employers, and any such acquisition will be considered inadvertent, and therefore not a GINA violation.
GINA requires employers that are in possession of genetic information to keep it confidential, in the same file as medical information and not in the personnel file. Such information may be disclosed only under the following limited circumstances:
Executive Order 11246 (EO 11246) prohibits companies holding contracts and subcontracts with the federal government from discriminating against employees or applicants on the basis of:
with respect to compensation.
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is the agency in charge of enforcing EO 11246 and regularly conducts compensation audits in order to detect systemic discrimination across pay grades (the purpose of the audit is not to detect isolated, individual cases of discrimination).
The OFCCP has established a set of guidelines to be used in enforcing the nondiscrimination requirements of EO 11246. The “interpretive guidelines” articulate the methods and legal and statistical standards that the OFCCP applies during routine compliance evaluations. The “self-evaluation guidelines” articulate the standards that contractors may voluntarily follow in order to audit their compensation practices for discrimination.
The OFCCP determines whether there is systemic compensation discrimination by analyzing the compensation of similarly situated employee groups.
The OFCCP also conducts employee interviews to establish appropriate employees to compare based on job duties and position, and to investigate possible compensation discrimination. The agency rarely finds discrimination based on statistics alone and will almost always require anecdotal evidence of discrimination. The OFCCP explains its findings to the contractor and allows the contractor the opportunity to explain any disparities in compensation.
Under the guidelines, the OFCCP requires contractors to evaluate their own compensation systems to determine whether there are any race- or gender-based disparities. The contractor does not have to use the methods prescribed under the “interpretive guidelines.” However, should the contractor choose to use this method, the OFCCP will deem the contractor in compliance with EO 11246 and will orchestrate its compliance monitoring activities with the contractor’s self-evaluation approach.
Regardless of the statistical method, contractors are expected to group their employees into similarly situated employee groups and analyze these groups at least once per year. The contractor is obligated to investigate any statistically significant disparities. If the disparities are inexplicable, they must be remedied.
An employer should implement several measures to avoid employee claims of discrimination:
Title VII of the Civil Rights Act (Title VII) prohibits an employer from retaliating against an applicant or employee because she or he opposed discrimination or participated in a Title VII process. Recently, the Supreme Court confirmed that an employee may also bring a retaliation claim under Section 1981.
In order to establish a case of retaliation, an employee must be able to show that all of the following are true:
Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in a Title VII process. Protected Title VII processes include:
Under the opposition clause, an employer may not discriminate against an employee because the employee opposed an unlawful employment practice under Title VII. In situations where the employee opposes an employer’s lawful practice, the employee’s opposition is also protected conduct so long as the employee had a good-faith belief that the opposed practice constituted a violation of Title VII.
It is not always clear what type of conduct qualifies as protected “opposition.” Courts have held that the following activities constitute opposition, and are, therefore, protected conduct under Title VII of the Civil Rights Act:
Conversely, courts have held that the following activities do not constitute opposition:
To show that an employment action was “adverse,” an employee need only establish that the action might have discouraged a reasonable employee from making or supporting a charge of discrimination. Therefore, the following actions could constitute adverse actions to support a retaliation claim:
In a retaliation case, the plaintiff bears the burden of proving that the employer took an adverse employment action in response to the plaintiff’s protected activity. One factor that courts consider is the amount of time that has elapsed between the protected activity and the adverse employment action. A short time period between the protected activity and the adverse employment action strengthens an employee’s allegation that the employment action was in response to the activity.
About the Editor
About the Firm
An HR audit snapshot - Massachusetts
An introduction - features of the HR Library
Background checks — Massachusetts
Benefits — Massachusetts
Celebrating in the workplace — Massachusetts
Child labor — Massachusetts
Compliance thresholds — Massachusetts
Disabilities and reasonable accommodation — Massachusetts
Disaster planning — Massachusetts
Discipline — Massachusetts
Discrimination — Massachusetts
Diversity in the workplace — Massachusetts
Drugs alcohol and tobacco — Massachusetts
Family and medical leave — Massachusetts
Federal contractors and affirmative action — Massachusetts
Health insurance continuation coverage — Massachusetts
Health insurance portability and privacy — Massachusetts
Health insurance reform — Massachusetts
Immigration — Massachusetts
Independent contractors — Massachusetts
Military leave — Massachusetts
Other types of leave — Massachusetts
Pandemic outbreaks — Massachusetts
Performance evaluations — Massachusetts
Personnel Files — Massachusetts
Plant closings and mass layoffs — Massachusetts
Policies and procedures manuals — Massachusetts
Politics in the workplace — Massachusetts
Privacy rights — Massachusetts
Protecting electronic information — Massachusetts
Public employers — Massachusetts
Recruiting and hiring — Massachusetts
Restrictive covenants and trade secrets — Massachusetts
Safety and Health — Massachusetts
Social media — Massachusetts
Telecommuting — Massachusetts
Temporary and leased employees, interns and volunteers — Massachusetts
Termination — Massachusetts
Unemployment insurance — Massachusetts
Unions — Massachusetts
Wages and hours — Massachusetts
Whistleblower protections — Massachusetts
Workers' compensation — Massachusetts
Workplace harassment — Massachusetts
Workplace investigations — Massachusetts
Workplace violence — Massachusetts