what is an adverse employment action eeocwhat is an adverse employment action eeoc

2d 398, 420 (S.D.N.Y. This will involve verifying respondent's statements and other evidence and comparing it with evidence that 71-1683, CCH EEOC Decisions (1973) 6262. employees to inform friends and relatives of the vacancy and invite them to apply. to another division against her will. The issue in a disparate treatment case is whether the Prior to 1960, R assigned all Blacks to the Oven and all Whites to the Shop. It is evidence of a discriminatory motive. Statistical proof must always be tailored to the facts of a particular case. Note: The perpetuation of past discrimination theory of discrimination is not universally recognized by the courts as a basis for relief. exam, the Commission will conclude that R's actions were disparate treatment based on race and a violation of Title VII. Teamsters, supra; Commission Decision No. Commission Decision No. 7612, CCH EEOC Decisions (1983) 6607 (respondent able to provide legitimate nondiscriminatory reason allowed polygraph use for applicants to positions of trust when only job-related questions are posed and when polygraph results may not be the sole qualifying factor), other holdings modified en banc, 644 F.2d 435, 27 EPD 32,328 (1981); evidence in support of its position. If a If charging party establishes that a neutral employment policy perpetuates past discrimination, respondent must justify the continued use of that policy as a business necessity. This determination must be based on a preponderance of the evidence. used to support charging party's case, but they too are not conclusive. Almost all of the positions which became available since 1965 have been filled through word-of-mouth recruitment. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. 1979); Johnson v. Ryder Truck Lines Inc., Adverse employment action, on the other hand, is . Example - CP, a Hispanic, worked under supervisor Y as a tool and diemaker. Part 1608, when such The EEO anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response. The charging party does not have to prove that respondent's actions were based on a discriminatory motive. R Section 3B of the UGESP requires, as part of any validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedures which have as little adverse impact as Comment There must be evidence that the adverse action was taken because of protected activity. A number of factors go into determining whether individuals are similarly situated. Corp., 404 U.S. 542, 3 EPD 8088 (1971); Commission Decision No. Respondent is then given the For detailed instructions on how to analyze an affirmative action plan and determine whether action was lawfully taken pursuant to it, the EOS Issuing Authority A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission When making personnel decisions - including hiring, retention, promotion, and reassignment - employers sometimes want to consider the backgrounds of applicants and employees. When CP inquired about the positions, the employment specialist asked CP whether she was a veteran. 1-844-234-5122 (ASL Video Phone) knew or reasonably should have known that practices and policies or the behavior of its employees were discriminatory. the Laborer and Janitorial departments. 604.7, RESCINDED B. Adverse employment action against an employee because that employee made a bona fide complaint alleging unlawful discrimination, sexual harassment or hostile work environment, or because that person testified, assisted, or participated in the investigation or hearing concerning such conduct.. The charging party can establish a prima facie case of discrimination by proving that past discrimination occurred and that it is being continued by the present operation of a neutral employment system. If CP had lacked the 3 years of experience, then the R's defense to the charge is that it has employed several women as management consultants. *Pre-adverse action letter/copy of report/rights under FCRA. The new guidance confirms that the same standards that apply to other selection devices apply to AI, which are those set forth in the EEOC's Guidelines. absent some legitimate, nondiscriminatory reason for this difference in treatment, the Commission will issue a cause determination. accommodation. Share sensitive The action taken against CP might only be part of a larger problem which is conducive to action of the type taken against CP. Validation is the process of demonstrating that the use of a The requirement to reasonably accommodate handicapped individuals is not synonymous those costs involved in rearranging schedules and recording substitutions for payroll purposes. If a respondent claims that the Commission has no jurisdiction over it because it is a religious educational institution, the following inquiries should be addressed to the respondent. If the respondent grants a preference to veterans, but this preference is not required by a local, state, or Federal law, the issue is non-CDP, and you should contact Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen In a charge alleging a pattern and practice of disparate treatment, statistical evidence is extremely important. Sex, religion, or national origin must be an actual qualification for performing the job. If a respondent has a policy of according preferential treatment to relatives of employees and its workforce is predominantly of one race or national origin, the policy will ordinarily have an adverse impact on other races and national educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such A lock ( L. 117-328) (PWFA), as it appears in volume 42 of the United States Code, at section 2000gg.The PWFA, which is part of Title VII of the Civil Rights Act of 1964, as amended (Title VII), and which is administered and enforced by the EEOC, requires covered employers to provide reasonable accommodations to a . One of the applicants was not seriously considered by R because he did not have three years of experience with R as a Lead Man. The rule is a separate company policy. It regularly displays posters in its facility indicating that it has a policy of preferring to hire Indians from the nearby discriminatory practices. Adverse employment actions are decisions that have a negative effect on an employee. CP alleges that R laid her off on the basis of sex. Commission Decision No. The group which receives the highest priority consists of members who have worked in R's In addition to termination, the following acts likewise represent adverse employment actions: Reassigning your work duties. R hired an Indian R hired a White female to fill the position. The respondent must raise this defense. The EOS must also examine respondent's statement and other evidence for pretextuality. The turnover information presented by R significantly changes the meaning of the statistical evidence the EOS had gathered. Excessively examining your work. Example 2 - R requires all applicants to submit to polygraph exams. position. 76-12, CCH EEOC Decisions (1983) 6607 (national origin Hispanic). whether they were all discharged. 1982) (no evidence of disparate treatment in 72-0281, CCH EEOC Decision (1973) 6293; Equal Employment Opportunity Commission. In some instances, a respondent will concede that a charging party was qualified for a position in question but argue that it selected another person because the selectee was better qualified. performance on polygraph exams based on race, sex, national origin, or age. Johnson v. Georgia Highway Express, Inc., 5 EPD 18,444 (N.D. Ga. 1972) (polygraph use is a permissible testing device for discipline in a disparate treatment action). Example - CP, a Black female, alleges that R discriminated against her on the basis of race by laying her off pursuant to a seniority system which perpetuates R's past discriminatory hiring practices. However, if the three White employees have less seniority than the CP, their lay-off is not relevant to CP's allegation since they were not similarly situated. denied, sub nom. CP believes that she was not hired because of her sex. include making facilities readily available and usable by handicapped employees, job restructuring, and acquisition or modification of equipment or devices. 4/20/83). Indeed, other employees, mostly male, held luncheon staff meetings to discuss the company softball team, the United Way Campaign and other matters. Equal Employment Opportunity Commission (EEOC) updated its guidance on employer vaccination policies in the form of additional Q&As. If the job CP sought had required specific skills (e.g. For example, take an employee who files a lawsuit against his or her employer. Phillips v. Martin Marietta which better accomplish the business purpose or accomplish it with less racial impact. An adverse action occurs when an employer behaves in a way that puts an individual or a group of people at a disadvantage as far as equal employment opportunities go. the employment decision that charging party is complaining of. If so, identify that faith. An EOS is not expected to understand the technical requirements for validity studies under the UGESP; however, a general understanding of validation is useful. The Uniform See Teamsters, supra. C.F.R. recommended that CP be suspended for a week. A tangible employment action requires an official act of the enterprise, a company act. Section 713(b)(1) of Title VII provides that: In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and Sporadic or isolated instances of discrimination will not establish a pattern and practice of disparate treatment, however, International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 14 EPD 7579 (1977). that charging party's lay-off was not discriminatory. by business necessity constitute illegal discrimination under Title VII. The following example illustrates this CP met all of the minimum qualifications This means that charging party must put forth enough evidence to raise the inference that charging party's allegations are true. 70-47, CCH EEOC Decisions (1973) 6044. In legalese, there has to be a "causal connection" between the protected activity and the adverse employment action. and minorities. On 24 May 2023, in Beasley v.O'Reilly Auto Parts, 1 the United States Court of Appeals for the Eleventh Circuit created a split in the circuit courts by holding that an employee must establish the occurrence of an adverse employment action in order to bring a lawsuit for failure to accommodate under the Americans with Disabilities Act, as amended (the ADA). Example 1 - CP, a Black male, alleges that R refused to hire him for the position of master machinist on the basis of race and that R discriminates against Blacks as a class in hiring for the skilled job categories. Federal, state, or local laws that confer special rights or privileges on veterans with respect to hiring are not affected by Title VII. The Commission recently issued Guidelines on Discrimination Because of Religion which deal with the issue of religious accommodation. This is probably particularly true for Indians living on Indian reservations because reservations tend to be located in isolated geographical areas away from major population centers. In this situation, the EOS would compare the For a detailed discussion of how to investigate charges of discrimination filed under the Rehabilitation Act of 1973, as amended, see ____ of the Compliance Manual. The EOS should then seek corroborating evidence of the alleged legitimate reason from respondent. 74-26, CCH Employment Practices Guide 6398. Whenever a respondent submits a validity study purporting to justify a selection procedure with adverse impact, the Commission's own psychologists will evaluate the study for compliance with professional standards. Section 703(f) of Title VII provides that any action or measure taken by an employer or other person subject to the Act against members of the Communist Party of the United States or of any other organization required to register as a religion, sex, or national origin played any part, consciously or unconsciously, in the challenged employment decision, a violation of Title VII has occurred. In a charge or complaint challenging a respondent's use of a polygraph examination, the standard Title VII and ADEA theories will apply. 76-65, CCH EEOC Decisions (1983) 6649 (charging party not hired because he failed exam required of all applicants: ". must establish that respondent's actions were based on a discriminatory motive. This defense may be a pretext for discrimination. factors. of the Compliance Manual.). With respect to her allegation that she was denied permission to use earned annual leave on the basis of sex, CP is The EEOC has issued new guidance about how to assess adverse impact when employers use AI to make or inform employment decisions regarding hiring, promotion, termination or similar actions. occurred before or after the effective date of Title VII. Standing to file a charge under the EEO statutes is very broad. been laid off prior to CP, as she alleges. The term "preponderance of the evidence" refers to the quality of the evidence, its reliability, and the credibility of witnesses. 71-797, CCH EEOC Decisions (1973) 6181. The Rehabilitation Act of 1973, as amended, governs the employment practices of all federal agencies and departments in the Executive Branch, all federal contractors, and all recipients of Federal financial assistance with respect to handicapped Guidelines on Discrimination Because As indicated above, the basis of the disparate treatment theory is differences in the treatment of similarly situated individuals. With respect to the promotion, CP met all of the minimum requirements for the position and is similarly situated to all qualified applicants for the position, all of whom happen to be An adverse employment action is a "significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing significant changes in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). This determination can be made by the EOS in 605 of Volume II of the Compliance Manual for a discussion of the 702 exemption.). respondent does so, the EOS must examine the affirmative action plan to determine whether it is a lawful plan, and then determine whether the respondent's actions were in fact taken pursuant to the affirmative action plan. Weeks v. Southern Bell Tel. For example, if charging party has submitted direct evidence of motive in a promotion charge (e.g., a disparaging racial remark by charging party's refused to take the test and were fired; all were Black. This issue is non-CDP. employee's religious practices. Coordination and Guidance Services, Office of Legal Counsel should be contacted for guidance whenever this issue arises. For example, in refused to recommend her for a promotion, thereby causing the promotion to be denied. respondent's subjective state of mind. 29 C.F.R. The most obvious example is a firing. Commission Decision No. 79-16 (1978), 6746. Respondent clearly is supported, controlled, and managed R has a reputation in CP's community of discriminating in Section 703(g) of Title VII allows an employer or other person subject to the Act to refuse to hire or discharge an individual if that action is in the interest of national security. Example - CP, a Hispanic male, applied for a promotion to a foreman position. 71-1447, CCH EEOC Decisions (1973) 6217. other employees, and R's clientele. A tangible employment action is an element of a Title VII action, which may hold an employer liable, or vicariously liable for the actions of a supervisor. This defense must be examined carefully. The composition of the appropriate labor force must be determined on a case by case basis and will vary with the circumstances in each case. diploma requirement is to presently exclude from the Shop all members of Group A, despite the fact that Whites hired prior to 1960 without a high school degree are permitted to remain. On the other hand, if 1979); Barnett v. W.T. Example 3 - R is a referral union. In This means, For example, charging party's individual The Rehabilitation Act of 1973, Section 501 as amended, requires all Federal departments and agencies in the Executive Branch of government to initiate affirmative action programs which encourage the hiring, placement, and advancement of 76-76, CCH Employment Practices Guide 6655; Commission Decision No. (See 616, Seniority, for further discussion of bona fide seniority systems and layoff). In this situation, the respondent presents evidence which indicates that charging party's allegations are factually incorrect and evidence of what actually occurred. disparate treatment. This issue is non-CDP. After talking with the CP and several witnesses, the EOS is convinced that CP is a member of the Communist Party, and that R was aware of her membership. 72-0606, CCH EEOC Decision (1973) 6310. the evidence that respondent has submitted to support its position or be able to identify witnesses who contradict respondent's position. Disparate treatment occurs when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin. 78-02, 6713. Significant changes here include firing, hiring, denial of promotion, reassignment with different responsibilities, demotion, suspension, economic harm, loss of pay, pay raise, promotion, change in working conditions . the EOS must bear in mind that only charges which are litigation worthy merit a cause determination. refused to admit Hispanics to the union prior to 1965. 2 Plaintiff Teddy . The statistical 2006), the court explained that there are no bright-line rules for determining which employment actions meet the "adverse" threshold. The Commission's Affirmative Action Guidelines govern this issue. CP was terminated. The failure to accommodate an employee's or prospective employee's religious practices, and the failure to accommodate a handicapped employee or prospective employee may be discriminatory. Reducing or threatening to reduce your wages or salary. Charging party's co-workers may be able to verify his/her version of an occurrence. The term "credibility of denies the charge and states that it hires without regard to the race of the applicant. In an adverse impact charge, on the other hand, the EOS is only concerned with whether an Due to a cut-off of 414, 21 EPD 30,392 A comparison between the charging party and one other similarly situated individual of a different Title VII status might indicate disparate treatment; however, a comparison with other similarly situated individuals might dispel this handle this aspect of the job. Commission Decision No. (2) Identify the individual hired for the position that charging party sought and indicate whether that individual is an Indian living on or near a reservation. The Commission is not aware of any conclusive evidence that there are significant differences in R's defense to the charge is that CP is not similarly situated with the male employees who were retained. During the EOS's interview with R's official, he stated that women couldn't handle this type of work, but he didn't believe greater than the percentage of Blacks within the SMSA as a whole. 1605.2 (e)(1). If so, submit a statement identifying the affiliation. trainees, how many there have been in the past, and the number of management trainees who have college degrees. 1-800-669-6820 (TTY) He alleges that his non-selection was based on his national origin. statement by an official of respondent that indicates a bias against members of a particular group. hire women with young children but hire men with children of the same age unless it can demonstrate that conflicting family obligations are more relevant to job performance for a woman than for a man. inference. During an interview with the EOS, R's personnel manager stated that Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive. Unless the individuals are If you do not click this box, the EEOC will not start investigating your claim. consultation with his/her supervisor. However, the specific definition of adverse action depends on the context. Citation Title VII, EPA, ADEA, Rehabilitation Act, ADA, GINA Document Applicant Employers, Employees, Applicants, Attorneys and Practitioners, EEOC Staff Previous Revision No Disclaimer Another situation where the actions of other supervisors may be considered is when R has a history of discriminating against certain groups, or tacitly approves of discrimination by doing nothing to remedy individual cases once it became aware of She was denied the position allegedly because R's official believed that CP The statistical data creates an inference that respondent refused to hire Blacks as secretaries and that charging party's rejection was pursuant to this association, or society. The duty to accommodate is an affirmative obligation. 1971), the court stated that the policy or practice must not only foster safety and efficiency of a plant, but also be essential to those goals. "); Commission Decision No. In order for this exemption to apply to an employer's hiring The fact that respondent has not discharged other individuals of charging party's Title VII status does not defeat the charging party's claim of test under similar percentage of applicants selected from the group with the highest selection rate. The seniority system was instituted on June 12, 1963, and there is no evidence indicating that there was discriminatory intent in the creation or the maintenance of the seniority system. R makes referrals on the basis of priority groups. To determine whether there was disparate treatment, the EOS should ascertain whether White employees who have been charged Application of the exception generally has been limited to those situations where only individuals of one sex, religion, or Section 703(i) of Title VII allows businesses on or near an Indian reservation to maintain and publicize a hiring preference in favor of Indians living on or near the reservation. The presence of a discriminatory motive can be The EOS submitted a request for information to R and learned that respondent was founded by the Respondents often attempt to rely on the fact that not all members of a Title VII class have been subjected to unfavorable treatment as a defense to charging party's prima facie case. The effect of the high school What constitutes "more than a de minimis cost" must be determined on a case by case basis. involved are possessed by large numbers of individuals in the civilian labor force. 72-0386, CCH EEOC Decisions (1973) 6295. If statistical data establishes that the percentage of a She would be at the bottom of the seniority ladder in her new unit and (2) Discharge - In a discharge case, similarly situated individuals are usually those who have been charged with misconduct identical or similar in kind or magnitude to that which the CP is accused It is not the charging party's responsibility to produce sufficient evidence to prove that his/her allegations are true, however. The 71-1683, CCH EEOC Decisions (1973) 6262. . See Commission Decision No. (Provide his/her name and address.). A charge must allege that an adverse employment action was taken because of an individual's membership in one or more protected classes. For example, a validation study might show statistically that applicants scoring below 70 on a test are less practice. A number of problems can arise in analyzing the evidence. 1964, R employed very few Blacks due to discriminatory hiring practices. He was merely being practical. To make out a claim for retaliation, it must be shown that (1) plaintiff was engaged in a "statutorily protected activity" by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an "adverse employment action" was taken by the employer, and (3) there is some causal connection between the two. After warning him several times, Y Section 704(a) of Title VII prohibits discrimination against individuals because they have filed a Title VII charge, have participated in a Title VII investigation, or have otherwise opposed Title VII discrimination. charging party is a pretext for discrimination. not measure the availability of Black teachers in the area. or friend, no violation of Title VII has occurred. These statutory defenses are discussed in this sub-section. The three individuals misconduct, it is reasonable to infer that charging party's status was a factor in the discharge. The neutral employment system will generally be a wage, pension, or seniority system, although it can be any policy or practice that operates to freeze the effects of prior Federal employees who abuse alcohol or drugs are considered handicapped individuals within the meaning of the Act. 1613.704. She alleges that R refused to promote her because of her sex. In an update on its EEO-1 Component 1 Data Collection landing page, EEOC pushed. that respondent regularly failed to hire Hispanics for professional positions, or that respondent regularly failed to promote Blacks. for why Hispanic charging party was only one asked to take test; also, non-Hispanic employees required to take tests on other occasions and also discharged for failure). (2) Not all Similarly Situated Individuals were Compared with the Charging Party - The treatment accorded charging party should be compared to as many similarly situated individuals as possible. During a three-month period he was repeatedly tardy reporting to work for the morning shift. After the respondent has submitted its position and evidence in support of that position, the EOS must always give the charging party the opportunity to respond to respondent's case. Additionally, the use of public transportation and the automobile have made In United States v. Bethlehem Steel Corp., 446 F. 2d, 3 EPD 8257 (2nd Cir. When similarly situated individuals of different race, sex, religion, or national origin groups are accorded differences in treatment in the context of the same or a similar employment situation, it is reasonable to infer, absent other system, the present underutilization of women cannot be attributed to discrimination. From respondent asserts this exception as a defense to a charge, the following information should be requested. (3) Identity of Similarly Situated Individuals Will Vary in Different Employment Situations - As indicated above, individuals similarly situated for one employment decision may not be similarly situated Respondent cannot sustain its burden with regard to the individual charging party by showing that other individuals of the The EOS can make this determination in consultation with his/her supervisor. In fact, respondent may raise these statistics to rebut an inference of discriminatory motive arising from comparative data. determination contains a statement that it is a "written interpretation or opinion of the Commission." is located, and in spite of the fact that many have applied for positions with respondent. CP was not promoted because she is a member of the Communist Party, therefore the failure to promote was not an unlawful employment practice under Title VII. The personnel manager's statements are direct evidence of discriminatory motive. Section 701(j) of Title VII requires employers and others subject to the Act to accommodate the religious practices of employees and prospective employees unless to do so would create an undue hardship on the conduct Tuesday, June 1, 2021. info@eeoc.gov Direct evidence of motive can be in the form of a document, it may be a statement by respondent's official in an interview They have held that discriminatory motive can be inferred In an adverse impact charge, the focus of the inquiry is on the consequences of employment practices rather than the motive. If an employer discovers the use of an AI decision-making tool would have an adverse impact, the EEOC urged employers to take steps to reduce the impactor select a different tool in order to .