According to the most recent cases brought forth by the Equal Employment Opportunity
Commission (“EEOC”), there are four main areas that businesses and local governments (like city councils and county commissions) should address in their personnel policies and practices: (i) age discrimination; (ii) background checks; (iii) sexual harassment; and (iv) harassment and social media policy.
Let’s discuss the background of employment discrimination law, and then address each of these four areas and how a small business and/or local governing bodies can avoid future lawsuits within these areas.
Background
For an employee to bring a claim against their employer for a discriminatory practice or
act, the employee must file a complaint within 180 days of the act of discrimination with
the Alabama Equal Opportunity officer or the Equal Employment Opportunity Manager.
Afterwards, the EEOC will investigate and attempt to mediate between the employee and employer. If the EEOC finds that employment discrimination has occurred, the EEOC will issue a right to sue letter to the employee. After receiving the right to sue letter, the employee must file suit within 90 days. However, if the employee brings a claim under the Age Discrimination in Employment Act (“ADEA”) or the Equal Pay Act, the employee does not need a right to suit letter and may file a lawsuit in federal court sixty days after the charge was filed with the EEOC for ADEA claims or two years from the day the employee received the last discriminatory paycheck under the Equal Pay Act.
When filing suit, the employee could bring a claim under Title VII, 42 U.S.C. § 1981, the
Equal Pay Act, or the Age Discrimination in Employment Act (“ADEA”). Title VII prohibits discrimination based on race, color religion, sex, and national origin. Under Title VII, the employee’s damages are capped and compensatory and punitive damages are not provided for.
However, if an employee adds a claim under 42 U.S.C. § 1981 (which allows an employee to bring a claim based on origin or racial discrimination) compensatory and punitive damages are not capped so the employee could receive more relief than if they strictly brought a Title VII claim. Basically, this means that the the local government would end up paying more damages to the employee. Additionally, an employee can also bring a claim under the Equal Pay Act which prohibits sex-based discrimination or the ADEA which prohibits discrimination based on age over 40 years old.
Areas to Address in Personnel Manuals and Practices.
Due to the complex nature of employment discrimination law, it is important for the council and commissions to address their policies to ensure their practices are compliant with the EEOC guidelines and nondiscriminatory. In the past year, the EEOC has addressed four main areas that employers should be careful of in their policies: (i) age discrimination; (ii) background checks/hiring policy; (iii) sexual harassment; and (iv) harassment and social media policy.
(i) Age Discrimination
In the past two years, the EEOC has brought forth more claims under the ADEA due to
certain hiring practices.
Some of these practices included the following:
• instructing staff to give hiring preference to millennials over older applicants,
• hiring less experience employees over older employees with more experience,
• terminating older employees to be replaced by younger ones, and
• refusing to re-hire an employee due to her older age.
As shown above, the EEOC has become stricter regarding what is tolerable when it
comes to employer’s hiring practices. This is why an audit would be beneficial for the
city/commission to create policies that are compliant with the EEOC guidelines.
(ii) Background Checks
In 2019, the EEOC and Dollar General reached a settlement agreement after the EEOC
brought forth a claim alleging racial discrimination under Title VII by using the criminal
conviction history of an applicant as a selection criterion for their hiring practice. The EEOC alleged that this hiring practice was not job-related and had a discriminatory impact on African-Americans. Additionally, according to the 2012 Enforcement Guidance by the EEOC, employers should not exclude applicants from employment based on criminal history alone unless the exclusion is related to the position the applicant is applying for and is consistent with business necessity which requires an individualized assessment of each applicant. This process can be tricky but can be implemented through an audit, updated policies and guided training with the persons responsible for hiring.
(iii) Sexual Harassment
Also, in 2019, the EEOC brought forth a claim against Credle Enterprises, LLC, doing
business as McDonald’s in the Texas panhandle, after two male employees subjected female employees to sexual harassment. Such harassment included physical touching, sexual jokes and the display of pornographic images. The female employees were provided $240,000 in monetary relief with an additional $100,000 distribution fund to any other female employee subjected to harassment who were employed with the company during the relevant time.
To prevent sexual harassment, guidelines and training must be implemented.
Additionally, if sexual harassment is reported to the city/commission’s corrective action must be taken immediately to ensure that they will not be liable to the reporting employee and will have a defense if such a claim occurs.
(iv) Harassment & Social Media Policy
In EEOC v. Nabors Corp. Services, an employer was liable for not protecting its
employees from protected-class harassment on social media. According to this case, the
local government must maintain policies regarding social media use and any company issued communication device in such a way as to prevent offensive communication or other conduct deemed to be detrimental to your business or local government’s commitment of being discrimination free.
To implement a protective strategy for the city/Commission, workplace workshops and training are important to prevent abuse of company issued communication devices or social media accounts by employees. This is why an audit implementing protective policies would be proactive.
