In Minnesota, employers are generally prohibited from discriminating against employees on the basis of:
Employers should become familiar with the following statutes in order to lessen their exposure to costly litigation and avoid liability for damages that can result from a determination that an employer has violated one of these statutes. Laws prohibiting discrimination include, but are not limited to, the following:
Companies holding contracts or subcontracts with the federal government are subject to additional nondiscrimination and affirmative action obligations according to the federal Executive Order program. Executive Orders 11246 and 11375 mandate that covered contractors undertake affirmative action efforts to promote full employment opportunities for minorities and women. Federal contractors are also required to take affirmative action for disabled workers under the Rehabilitation Act and for certain veterans under the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA). Contractors doing business with the State of Minnesota or units of local government are also generally required to undertake affirmative action efforts as part of their contract obligations.
Title VII prohibits employment discrimination based on race, color, sex, religion and national origin. It covers public and private employers that have 15 or more employees (volunteers, independent contractors and directors in corporations are not counted as part of this total). To determine if a company has 15 or more employees, employers should determine the number of both full- and part-time employees on the payroll. For employers hovering around the 15 employee threshold, coverage exists if the employer had 15 or more employees in 20 or more calendar weeks of the current or prior calendar year. Discriminatory actions prohibited under Title VII include, but are not limited to:
It is important to note that an employer may be held liable for the discriminatory animus or intent of a supervisor who did not make the ultimate employment decision if the employee can show that the employer’s decision was influenced by the biased nondecision maker. Employees who file suit under Title VII may base their claim on one of two theories:
A disparate treatment claim is essentially comprised of two elements:
When an employee brings a disparate treatment claim under Title VII, the employee is alleging that the employer treated the employee differently than others because of the employee’s race, color, religion, sex, or national origin. While most disparate treatment claims allege that the employee was treated less favorably due to the employee's membership in one of the protected classes, employers need to be aware that courts have found discrimination where an employer’s differential treatment resulted in the same treatment. For example, an employer’s use of segregated facilities would constitute disparate treatment, even if the facilities are equal in all outward respects. Discrimination results from the badge of inferiority that attaches to being treated differently on account of membership in a protected category.
Employers also are subject to claims under Title VII for discrimination against a group of employees or job applicants because of some protected group characteristic. A group of employees may bring a Title VII claim alleging that the employer has a formal policy of discrimination, or the employees may allege the employer followed an informal pattern of discrimination against individual members of a protected group.
An employee cannot succeed with a disparate treatment claim by simply showing that the employee suffered some adverse employment action. To the contrary, the central issue in a disparate treatment claim is whether the employer’s actions were motivated by discrimination, and so, an employee must be able to prove discriminatory intent brought about the adverse employment action.
More often than not, an employee does not have direct evidence of an employer’s discriminatory intent and must, therefore, rely on circumstantial evidence to prove the employee's claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but instead allows the judge or jury to infer the existence of the fact. For example, 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.
Litigation of a discrimination claim based on circumstantial evidence proceeds in three steps, commonly called the McDonnell-Douglas/Burdine burden-shifting test:
Alternatively, a woman who is claiming that she was fired because of her sex might make an initial showing only that she was replaced by a man who did not belong to a minority group, and there were other circumstances that suggested discriminatory treatment.
Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent. Examples of direct evidence include:
An applicant or employee may rely solely on direct evidence to prove intentional discrimination. If an applicant’s or employee’s direct evidence is sufficient to establish a rebuttable presumption of discrimination, the employer usually defends against the claim by producing evidence that disputes the applicant’s or employee’s evidence (for example, the supervisor did not make the alleged discriminatory statements) or by asserting affirmative defenses.
Suppose an employer is preparing to terminate an employee on a recommendation from two of the employee’s supervisors. These supervisors claim that their recommendation is based on the employee’s poor performance, but the employer discovers that the two supervisors have made statements that could be perceived as discriminatory. Can an employer go ahead and terminate the employee and avoid monetary damages by claiming that the supervisors would have recommended the termination even if they did not harbor any discriminatory bias?
It can, but it should carefully consider potential consequences. A mixed-motive case is often characterized by an employee providing direct evidence of discrimination (such as discriminatory statements by supervisors), but such direct evidence is not required to establish a mixed-motive case. An employer may defend a mixed-motive case by asserting 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, however, should be careful in defending a mixed-motive case. While an employer may be able to avoid reinstating the employee or paying damages in the form of back pay and front pay by showing the same decision would have been made even without discriminatory bias, a court can still award attorneys' fees and other relief to an employee if the discriminatory bias was at all involved in the decision-making process.
Here are some precautionary measures to help avoid or defend against a discrimination charge:
Unlike disparate treatment, which focuses on intentional discrimination towards an individual due to membership in a protected group, the essence of a disparate impact claim is that an employer’s seemingly neutral policy or practice is unlawful because it has a significant adverse impact upon a protected group. Common examples are minimum education requirements, height and weight standards, and pre-employment test scores. The fact that the employer had no discriminatory intent does not shield an employer from liability if the implementation of a policy or procedure results in a discriminatory impact, unless the policy is justified by business necessity.
As is the case with disparate treatment claims, an employee bears the burden of proving that a particular policy has a disproportionately adverse impact on a protected class. Claimants often rely on statistical evidence to satisfy this burden. Examples of statistical evidence frequently relied upon include:
Put simply, an employee must show that a particular employment practice produced discriminatory results.
An employer can defend a disparate impact claim by challenging the adequacy of the employee’s statistical showing, such as by showing that a more refined analysis does not support a finding of disparate impact. Alternatively, an employer may demonstrate that the business practice or hiring device at issue is justified by business necessity and is related to the requirements of a job. Even if the employer is able to put forth such evidence, an employee can still prevail on a claim of disparate impact by showing that an equally-effective hiring device or employment practice was available to the employer and would have had a less severe impact on members of the protected group.
Title VII is enforced by both the U.S. Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal or state courts. Before bringing a suit in court, a claimant must file a charge of discrimination (a charge) with the EEOC. In Minnesota, the basic deadline for filing a charge with the EEOC against an employer with more than 15 employees is 300 days after the employee had notice of the alleged discriminatory event, and that deadline is extended to a period of one year for filing a claim against an employer with less than 15 employees. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file the charge within 300 days of the last occurrence of the alleged discriminatory practice.
After a charge is filed, the EEOC either investigates the claim or defers the investigation to the state or local agency that has jurisdiction. In most cases the EEOC will give the parties the opportunity to resolve the matter through participation in its voluntary mediation program. Besides avoiding the cost of responding to an investigation, the mediation program offers a way to resolve the charge much more quickly for the parties since EEOC investigations typically take ten months to resolve. The administrative agency uses a “reasonable cause” standard to determine whether it is more likely than not that discrimination took place. The focus is on whether the employee has established some evidence of discrimination, as well as whether there is any evidence that the employer’s stated reasons for the employment decision are not credible. If the EEOC determines there is “reasonable cause” to believe the employee’s charges are true, it then attempts to eliminate the unlawful discrimination by persuading the employer to eliminate the discriminatory practice and provide relief to the employee. If the EEOC determines that there is no “reasonable cause” to believe the employee’s charges are true, it will issue notice to the employee of the right to bring a private lawsuit (often referred to as a right-to-sue letter). Lawsuits must be brought within 90 days of receipt of this notice or they will be untimely.
Title VII remedies aim to eradicate discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred. Title VII also provides for monetary damages that may be awarded only against employers and not against the individual managers or supervisors who are found to have acted with a discriminatory intent or impact. Examples of available remedies include:
The Minnesota Human Rights Act (MHRA) is the state equivalent to the federal statutes on discrimination. The MHRA prohibits certain practices of discrimination based on:
Retaliation against employees who oppose practices or acts forbidden under the MHRA is also prohibited.
The Minnesota Department of Human Rights (MDHR) investigates complaints of discrimination brought under the MHRA. Any employee who claims to have been a victim of discrimination, the Minnesota Attorney General, the MDHR, and employers all have standing to file complaints with the MDHR.
As explained previously, complaints generally must be filed with the MDHR within one year of the alleged discrimination. Upon filing, the MDHR will institute an investigation similar to the investigation discussed earlier with respect to the EEOC. The MDHR may conduct a fact-finding conference and will likely encourage the parties to reach a settlement through mediation. If no settlement is reached and if the MDHR determines there is probable cause to believe the facts alleged constitute a violation of the MHRA, the case will proceed to public hearing before an administrative law judge (ALJ). The result of those proceedings may be reviewed by the courts. If the MDHR finds no probable cause, it will issue a “No Probable Cause” determination letter and will not further pursue the allegations. An employee who disagrees with the findings of a “No Probable Cause” determination letter may request the MDHR reconsideration of its determination but must do so within 10 days of receiving the “No Probable Cause” determination letter.
Remedies under the MHRA include all of the categories of relief available under Title VII with one exception – there is no cap on the amount of compensatory damages that may be awarded.
As discussed previously, employees may file claims based on race discrimination under Title VII. However, employers must be aware of a second source of protection – the Civil Rights Act of 1866 (Section 1981). Section 1981 is often invoked by employees who are seeking to avoid Title VII’s procedural requirements, and in some cases, to provide the employee access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race or stereotypes often associated with race. In addition, both laws protect against racial harassment.
Title VII prohibits discrimination based on national origin. While “national origin” pertains to the geographic birthplace of the employee or the employee's ancestors, the term also encompasses members of all national groups and groups of persons of common ancestry, heritage, or background. Title VII not only protects against discrimination against employees who came from a particular country but also protects employees who associate with persons of a particular national origin. Title VII's protections also extend to prohibit discrimination based on a perception of national origin, even if that perception is incorrect.
According to EEOC guidelines, Title VII’s protections cover:
Immigration Reform and Control Act (IRCA) contains two anti-discrimination provisions that aim to deter employers from refusing to hire noncitizens. The first provision extends Title VII’s existing prohibition against national origin discrimination to cover employers with four or more employees and applies to employers that are otherwise outside Title VII’s coverage. The Act’s second provision prohibits discrimination based on citizenship status.
This protection is subject to the following three limitations:
While the IRCA contains protections for aliens lawfully present in the United States, it makes it unlawful to hire or recruit an unauthorized alien for employment in the United States. Likewise, it is unlawful to continue to employ an alien knowing that the person is or has become unauthorized. An employer may defend itself on the basis of complying with the employment verification system.
The Genetic Information Nondiscrimination Act (GINA) is enforced by the EEOC and prohibits employers and other entities covered by GINA Title II from requesting, requiring or purchasing genetic information of employees or their family members, and it further prohibits employers from disclosing or making employment-based decisions on any such information it has. Among others, GINA applies to:
Under GINA, it is illegal to discriminate against people because of genetic information. Employers cannot make employment decisions using such information, for example, failing to hire, promote or choosing to demote or fire someone. It is also illegal to harass a person because of 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.
Like other employment discrimination statutes, GINA also contains provisions making it 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 than other laws. Under GINA, family members extend to an individual’s fourth-degree relatives, which includes distant relatives such as great-great-grandparents and children of first cousins. Family members also include 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. These all involve analysis of proteins or metabolites that does not detect genotypes, mutations or chromosomal changes.
Employers generally may not request or require genetic information, even non-deliberately. According to EEOC regulations, a request for genetic information includes “conducting an Internet search in a way that is likely to result in obtaining genetic information, as well as ‘actively listening’ to third-party conversations or making requests for information about an individual’s current health status in a way that is likely to result 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 (for example, 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.
Where proper notice is provided, employers will benefit from a safe harbor. Under the circumstances, any acquisition will be considered inadvertent and there will be no liability under GINA.
GINA requires employers that are in possession of genetic information to keep it confidential, in the same file as medical information and not in a personnel file. Such information may be disclosed only under limited circumstances:
The federal six-in-one poster that incorporates GINA’s provisions appears is available at:
Under Title VII, employers may not require employees or applicants to violate sincerely held religious convictions, absent a showing of undue hardship on the employer’s business or other employees.
Religion is defined in Title VII to include “all aspects of religious observance and practice, as well as belief.” The EEOC’s regulations define “religious practice” as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The law protects all aspects of the religion, its observances, and its practices.
Under Title VII, religious discrimination is marked not only by overt discrimination, but also by an employer’s failure to accommodate an employee’s religious observances, thereby forcing the employee to choose between religion and the job. As such, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious practices if it can do so without undue hardship on the business. This duty effectively makes Title VII’s protection of religion different than the protection afforded to other protected classes because, in many cases, the duty to accommodate results in an employer providing preferential treatment to those employees participating in certain religious practices.
Employees who claim discrimination based on an employer’s failure to accommodate must first establish all of the following three elements:
If the employee establishes these three elements, the employer must then prove that it attempted to accommodate the employee’s religious beliefs or was unable to provide an accommodation without undue hardship. Therefore, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.
It is well-settled that an employer, in order to fulfill its duty to accommodate, does not have to provide an employee with the “best accommodation” or the accommodation preferred or proposed by the employee. In order to defend against a failure to accommodate claim, an employer simply must show that it offered a reasonable accommodation to the employee.
An employer does not have to implement any accommodation at all, if to do so would result in an undue hardship. The U.S. Supreme Court has interpreted “undue hardship” quite favorably for employers in the context of claims for religious discrimination (the contrary is true with respect to claims under the Americans with Disabilities Act). The U.S. Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal cost for the employer to implement. Whether an accommodation is reasonable depends on the facts of each case.
Title VII prohibits employment decisions based on sex or sexual stereotypes. In this context, sex refers to gender and not to sexual practices or preferences. Other issues included under the broad umbrella of “sex discrimination” include compensation discrimination, pregnancy discrimination, and sexual harassment.
Under Title VII, an employer may not make employment decisions based on sex, nor may it implement employment practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification defense.
When an employer asserts the BFOQ defense, it is basically arguing that no individual of a particular gender, because of the individual's gender, can perform the job at issue. In order to establish a BFOQ defense, the employer must demonstrate:
Factors that courts consider when determining whether a sex-based discriminatory practice is lawful:
The Equal Pay Act (EPA) prohibits an employer from discriminating between employees within any establishment on the basis of sex by paying them different wages for positions that require equal skill, effort, and responsibility, and which are performed under similar working conditions. Under the Act, the term “wages” encompasses all forms of compensation. Therefore, a differential in fringe benefits, when all other compensation is equal, may serve as the basis for a claim.
In order to prevail, an employee must be able to identify another employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts will not compare wages paid to employees from separate places of business unless the employee can show that the employer’s operations are integrated within the separate facilities and that the administration of these facilities is centralized.
When determining whether two jobs are equal, it is the content of the job that matters, not the formal job description. Therefore, courts will consider the following factors:
An employer may defend against a compensation claim brought under the EPA by proving that the difference in pay rate is based on:
Employers should note that in correcting a pay differential, no employee’s pay may be reduced. Instead, the pay of the lower-paid employee must be increased.
The EEOC enforces the EPA. Unlike Title VII, employees are not required to satisfy any administrative prerequisites before filing suit. Employees must file suit within two years after the first day the employee is paid in a manner that violates the statute.
Minnesota’s recently passed legislation requires that state contractors pay men and women equally, extends parental leave from six to 12 weeks, and requires employers to make new accommodations for expecting mothers.
There are nine major changes in the Minnesota legislation that will affect employers.
The Pregnancy Discrimination Act (PDA) 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 only. It does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For example, an employer is justified in terminating an employee for excessive tardiness, even if the tardiness is caused by the employee’s pregnancy-related morning sickness. The PDA does not require employers to treat pregnant employees better than they would any non-pregnant employee who was equally tardy. Care must be taken, however, because some pregnancy-related conditions may be covered by the ADA or the FMLA and may, therefore, require accommodation by the employer.
The PDA requires that pregnant women be given at least the same benefits and leave time as any other employee. For example, 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 do all of the following:
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.
Congress enacted the Age Discrimination in Employment Act (ADEA) with several goals in mind. Specifically, the ADEA is designed to:
The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age, and its protections apply to both employees and applicants in both public and private employment. Under the ADEA, it is unlawful for an employer to discriminate against a person because of age with respect to hiring, termination, promotion, layoff, compensation benefits, job assignments, and training.
The ADEA applies to employers with 20 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 brought in federal court) determines whether the number of employees is sufficient to invoke the protection of the ADEA. As with Title VII, filing a charge with the EEOC is a prerequisite to bringing a lawsuit under the ADEA. Because Minnesota is a deferral state, as discussed previously, an employee must file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. Likewise, the employee has 90 days from the receipt of a right-to-sue letter to file suit in federal or state court.
Most discrimination cases under the ADEA are brought under the disparate treatment theory. The ADEA has adopted the same general principles governing the burden of proof as those established in Title VII disparate treatment claims. Thus, the employee or applicant attempts to establish some evidence of discrimination; the employer responds with a legitimate, non-discriminatory explanation for the adverse employment action; and the employee or applicant must then prove that the explanation offered is either false or a pretext for discrimination. One important distinction is that it is not sufficient for an employee or applicant to show that age was a significant fact in the decision at issue. Instead, the employee or applicant must meet a more stringent test of showing that the alleged discriminatory action would not have been taken “but for” the employee’s or applicant’s age.
As with claims under Title VII, there is no universal paradigm of what must be proven in every case to make out a prima facie case of discrimination. In general, the employee or applicant must present sufficient evidence of discrimination to allow a reasonable fact finder to draw an inference of discrimination. Therefore, the employee or applicant might prove:
The Supreme Court has held that an employee is not required to show that the employee was replaced by someone outside the protected age group. For example, a 56-year-old employee may establish a prima facie case of age discrimination by alleging that the employee was terminated and replaced by an employee who was 40 years old.
However, the Supreme Court has also stated that the complainant’s replacement must be substantially younger. Thus, a 65-year-old who is replaced by a 64-year-old will not likely be able to succeed on an age discrimination claim. Of course, if the employer has a practice of firing employees whenever they reach age 65, or if direct evidence of age bias exists (for example, “we thought it was time you retired”), then a reasonable fact finder could find a discriminatory motive even if the employee was replaced by someone just a couple years younger.
In limited instances, employees may bring an age claim even though they were not replaced. This situation typically arises after a reduction in force when an employee alleges that the position was eliminated altogether because of the incumbent’s age and, as such, the displaced employee cannot identify a younger replacement.
The Bona fide occupational qualification (BFOQ) is a defense that concedes age was considered in an employment practice or policy but claims that the use of age as a qualification is “reasonably necessary to the normal operation of the particular business.” The U.S. 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 all or nearly all employees above a certain age lack the qualifications required for the position,” or it would be highly impractical for the employer to test each individual employee to determine if each has the necessary qualifications.
The ADEA permits employers to implement a bona fide seniority system so long as it “is not intended 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, as such, 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 aims to ensure that all “age-based reductions in employee benefit plans are justified by significant cost considerations.” The OWBPA provides that it is lawful to implement an employee benefit plan where the payments made or costs incurred on behalf of an older employee are at least as large as those incurred on behalf of a younger worker.
The OWBPA contains a few exceptions to this cost-justification defense. For example, while an early-retirement incentive program is typically legal, it will be deemed invalid if a court finds that it is involuntary or is inconsistent with the purposes of the ADEA. The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan based on age-related reasons.
An employment decision based on good cause, or a reasonable factor other than age (RFOA), is lawful. Typically, an employer implements this defense by articulating the legitimate business reason motivating the decision. Courts have held that factors that usually correlate with age, such as pension eligibility, tenure, or seniority, usually fail to satisfy the RFOA defense.
The ADEA allows an employer to enforce mandatory retirement at age 65 for bona fide executives or high policy-making employees. When determining whether a particular employee qualifies, courts will consider the nature of the employee’s duties, responsibilities, and authority. The ADEA specifies that both:
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. Employers have several criteria on which they may lawfully base layoff selections. Examples include:
Employers invite liability during an RIF when they fail to articulate clear selections standards and review processes. Therefore, it is important for employers to implement layoff procedures and to provide documentation that justifies each termination on factors other than age.
There are two techniques employers may use to limit the fallout from RIFs:
At an employer’s request, an individual may agree to waive any rights or claims the individual may have under the ADEA in exchange for some benefit to which the individual is not otherwise entitled. The OWBPA imposes specific requirements for releases precluding ADEA claims. According to the OWBPA, in order for a release that releases ADEA claims as part of an individual separation to be valid:
If the waiver is requested in connection with a termination or exit incentive program offered to a group of employees, each employee must be given a disclosure regarding the ages of the affected employees in the same decisional unit. In addition, each employee asked to sign a waiver of ADEA rights must be given at least 45 days to consider the agreement.
The ADEA prohibits employers from forcing employees into early retirement for the economic benefit of the company. Therefore, while a release may prevent a separating employee from filing a suit based on claims under the ADEA, the employee is always free to challenge the validity of the release itself.
The U.S. Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release. To require employees to tender back their benefits would have a “crippling effect” on the ability of such employees to challenge releases obtained by illegal means such as misrepresentation or duress.
Federal contractors are subject to non-discrimination provisions in addition to the generally applicable federal nondiscrimination laws such as Title VII, the ADA, and/or the ADEA. These additional discrimination prohibitions typically are imposed by laws enacted via executive orders issued by the President, or by rule or regulation, and often enforced by the Office of Federal Contract Compliance (OFCCP). The past several years have witnessed a noticeable increase in the nondiscrimination obligations for federal contractors, whether by Executive Order or by rule or regulation.
Executive Order 11246 applies to companies holding contracts and subcontracts with the federal government and broadly prohibits discrimination with respect to terms and conditions of employment, including compensation. In July 2014, former President Obama issued an Executive Order to expand the protected classes created by Executive Order 11246 to include sexual orientation and gender identity. Regulations too effect in April 2015, and now government contractors subject to the order are prohibited from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. OFCCP is in charge of enforcing Executive Order 11246 and regularly investigates complaints of discrimination and 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).
Although the current administration has initiated efforts to rescind Executive Order 11246, that has not yet been finalized as of this writing, so employers should be aware that these restrictions still remain in place.
OFCCP has established rules to increase the proportion of veterans and individuals with disabilities under the programs it supervises. The rules, which have been in effect since 2014, require contractors to adopt certain hiring benchmarks for veterans and utilization goals for individuals with disabilities. The rules also require additional collection of employment data and voluntary self-identification of veteran/disability status at pre- and post-offer stages.
Executive Order 13665 was issued in April 2014, promoting pay transparency and openness by expressly permitting the employees and job applicants of federal contractors to inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants without fear of discrimination. This non-discrimination provision does not apply to employees or applicants who make the disclosure based upon information obtained in the course of performing essential job functions.
The Final Rule implementing Executive Order 13665 took effect on January 11, 2016, and applies to new federal contracts or alterations to federal contracts occurring on or after January 11, 2016. Federal contracts and employee handbooks must be updated to reflect the new provision, and federal contractors must disseminate the provision by posting it electronically or where it will be available to applicants or employees. The OFCCP generally requires the following language in the handbook and postings:
The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor’s legal duty to furnish information.
Executive Order 13706, signed in September 2015, requires certain federal contractors to provide employees with up to seven days of paid sick leave every year. Executive Order 13706 applies only to certain categories of federal contracts, including those for services under the Service Contract Act, construction covered under the Davis-Bacon Act, concessions, or contracts in connection with federal property or lands and related to offering services for Federal employees, their dependents or the general public, and excludes contracts for the manufacturing or furnishing of goods subject to the Walsh-Healey Public Contracts Act.
Under Executive Order 13706, a contractor must permit an employee to accrue not less than one hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, and accrual may be limited to 56 hours per year. Leave may be used for the employee’s own care as well as for family care, with familial relationships being defined fairly broadly (e.g., an elderly neighbor whom the employee considers to be like a grandfather). Employees may also use the paid sick leave for absences resulting from domestic violence, sexual assault, or stalking.
Employers must allow employees to carry over accrued, unused paid sick leave from year to year, but may cap the accrual of paid sick leave at 56 hours. Employers also must notify employees in writing of the amount of paid sick leave they have available at the end of each pay period or month, whichever interval is shorter.
The DOL issued regulations implementing Executive Order 13706 on September 30, 2016, and the regulations are effective as of November 29, 2016. Executive Order 13706 and its implementing regulations will apply to new federal contracts entered into on or after January 1, 2017.
Executive Order 13673, regarding Fair Pay and Safe Workplaces, requires prospective federal contractors on contracts exceeding a certain dollar amount to publicly disclose violations of certain labor laws within the prior three years, including, among others, violations of the FLSA, OSHA and equivalent state safety laws, NLRA, Rehabilitation Act, ADA, ADEA, FMLA and Title VII. Covered federal contractors must provide updates on any labor law violations as needed during the bidding process and then once every six months after the contract is awarded. The DOL will use the information reported to determine whether prospective or current contractors have satisfactory records of integrity and business ethics, and to ensure that repeat offenders are not awarded contracts.
Final regulations implementing the Order became effective October 25, 2016, but the reporting of labor law violations is being phased in over time. As of October 25, 2017, covered subcontractors with contracts under consideration with a total value of at least $500,000 (excluding contracts for commercial-off-the-shelf items) must disclose labor law violations dating back to October 25, 2015, and must inform the prime contractor. Beginning October 25, 2018, all covered contractors and subcontractors with a contract under consideration with a total value of at least $500,000 must disclose labor law violations dating back three years.
Executive Order 13673 further requires that as of January 1, 2017, contractors and subcontractors with a contract exceeding $500,000 must provide employees with a wage statement each pay period that sets forth the employee’s hours worked (including any overtime hours), pay, and any additions or subtractions from pay. Employers need not report hours worked for employees who have been informed in writing that they are exempt from the overtime laws. If employers provide pay less frequently than weekly, the wage statement must be broken down into weekly components. Wage statements may be provided electronically if the employee has access to a computer at work.
As of January 1, 2017, employers covered by Executive Order 13673 also must advise independent contractors in writing each time they are engaged to work on government contracts that they are considered independent contractors.
Finally, Executive Order 13673 prohibits covered employers with a government contract of at least $1 million from requiring employees to agree to mandatory arbitration of claims under Title VII or sexual harassment or assault claims in general.
On September 29, 2016, the EEOC issued its final revisions to its EEO-1 reports to require all private employers, including federal contractors and subcontractors, with 100 or more employees to submit summary pay data on wages paid to their employees. This reporting requirement is in addition to the current reporting by job category of employee gender, race, and ethnicity. Federal contractors and subcontractors with 50-99 employees will not have to report the summary pay data, but will continue to report by job category of employee gender, race and ethnicity.
The summary pay data reporting requires employers to identify and report employees’ W-2 earnings and hours worked in 12 pay bands, and apply the pay bands to each of the 10 EEO-1 job categories. Individual employees’ wages and salaries are not reported.
The new reporting requirements went into effect for EEO-1 reports due March 31; however, as a result of the government shutdown, the deadline to submit the 2018 EEO-1 report was extended to May 31, 2019. With the new March 31 reporting deadline, employers counted their workforce in any pay period between October 31 and December 31.
Title VII explicitly prohibits employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII processes. Other civil rights statutes such as Section 1981 have been held to contain an implicit prohibition on retaliation. In order to establish a case of retaliation, an employee must be able to show all of the following:
Third parties, even nonemployees, are protected from retaliation if an employer inflicts reprisals on them because of their close association with someone who has engaged in a statutorily protected activity. Such third parties might include a spouse, family member, or fiancé, and those third parties could very well have the right to bring retaliation claims for their own damages if they are subject to retaliation.
Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in Title VII proceedings. Specific acts that are protected under the participation clause include filing a formal charge of discrimination against the employer, expressing an intention to file a charge, acting as a witness or testifying for a co-worker, refusing to act as a witness for the employer, and assisting fellow workers in their discrimination claims. The protection given to the participation activities is almost absolute, and even protects workers who have made false and malicious charges or engaged in conduct suggesting their unsuitability for the particular employment.
Under the opposition clause, an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. This protection extends even to the filing of a discrimination charge that is determined to lack merit. In situations where the practice opposed is not deemed unlawful under Title VII, the employee’s opposition is still protected so long as the employee had a reasonable and good-faith belief that the practice opposed constituted a violation of Title VII.
Often times, it may not be clear what type of conduct qualifies as protected “opposition.” Courts have held that the following activities do constitute opposition and therefore are protected under Title VII:
Conversely, courts have held that the following activities do not constitute opposition:
Adverse employment actions affect the terms and conditions of employment. The following could be considered an adverse employment action:
In a retaliation context, the adverse action taken against an employee need not rise to the level of being a tangible job detriment in and of itself to be actionable. It is sufficient if the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.
In a retaliation case, the employee bears the burden of proving that the employer took an adverse employment action because of the employee’s protected activity or because of the protected activity of someone closely associated with the employee, according to a 2013 ruling from the U.S. Supreme Court. An employee can no longer prove a retaliation claim simply by proving that retaliation was one of other, lawful motives – a so-called mixed motive theory. Instead, under the 2013 decision, the employee must show that the adverse action would not have occurred “but for” the protected activity.
One of the factors courts often consider is the amount of time that has elapsed between the protected activity and the adverse employment action. Although a short time frame will no longer be sufficient by itself under the 2013 decision, it may strengthen other evidence that shows the employment action was in response to the protected activity.
Another important factor in the causal analysis is the degree to which the employer can show that its decision was made by someone who lacked knowledge of the alleged protected activity. For example, a layoff that is ordered by an employer’s home office might not be a basis for a retaliation claim if the decision-makers in the home office did not know that the employee had earlier filed a discrimination charge. Of course, if the decision was based on performance evaluations that had been completed by someone who did have knowledge of the discrimination charge, then it may be fair for a decision maker to presume the transfer of retaliatory intent was from the supervisor to the home office.
About the editor
About the Firm
All the features of the HR Library
An HR audit snapshot— Minnesota
Background checks — Minnesota
Benefits — Minnesota
Celebrating in the workplace — Minnesota
Child labor — Minnesota
Compliance thresholds — Minnesota
Disabilities and reasonable accommodation — Minnesota
Disaster planning — Minnesota
Discipline — Minnesota
Discrimination — Minnesota
Diversity in the workplace — Minnesota
Drugs and alcohol — Minnesota
Family and medical leave — Minnesota
Federal contractors and affirmative action — Minnesota
Health insurance continuation coverage — Minnesota
Health insurance portability and privacy — Minnesota
Health insurance reform — Minnesota
Immigration — Minnesota
Independent contractors — Minnesota
Military leave — Minnesota
Noncompete agreements and trade secrets — Minnesota
Other types of leave — Minnesota
Pandemic outbreaks — Minnesota
Performance evaluations — Minnesota
Personnel files — Minnesota
Plant closings and mass layoffs — Minnesota
Policies and procedures manuals — Minnesota
Politics in the workplace — Minnesota
Privacy rights — Minnesota
Protecting electronic information — Minnesota
Public employers — Minnesota
Recruiting and hiring — Minnesota
Safety and health — Minnesota
Social media — Minnesota
Telecommuting — Minnesota
Temporary and leased employees — Minnesota
Termination — Minnesota
Unemployment compensation — Minnesota
Unions — Minnesota
Wages and hours — Minnesota
Whistleblower protections — Minnesota
Workers' compensation — Minnesota
Workplace harassment — Minnesota
Workplace investigations — Minnesota
Workplace violence — Minnesota