4A- 3 - U.S. Anti-Discrimination Laws

Enforcement and the EEOC

Among its other provisions, Title VII created the EEOC, providing it with rulemaking and regulatory authority over employment discrimination issues. The rules adopted by the EEOC are extensive, and a full explanation of these regulations is beyond the scope of this review. But simply put, the EEOC has broad authority to prohibit unlawful employment practices under Title VII. Both aggrieved individuals and EEOC members may file a charge before the EEOC, which then has ten days to serve that charge upon the respondent (i.e., the employer, employment agency, labor union, or training program). The EEOC then investigates the charge to determine whether "reasonable cause" exists to establish the claim of discrimination. The EEOC has extensive investigatory powers, including the right to examine and copy evidence from any person under investigation and to compel testimony. If the EEOC finds reasonable cause after its investigation, it "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." In the event that the EEOC cannot reach a reasonable accommodation with the respondent, the EEOC may file a civil action against the respondent. If, after an investigation, the EEOC does not find reasonable cause, the EEOC will dismiss the charge. After this dismissal, the aggrieved individual then has the right to bring a civil action against the respondent, though the government maintains the right to intervene in such litigation. A court hearing a suit following administrative exhaustion before the EEOC has full authority to grant injunctive relief, which may include reinstatement of an employee and back pay. Attorney's fees are also recoverable. The above procedures apply generally to individual cases of discrimination. Where a pattern or practice of discrimination exists, the EEOC has additional powers. The EEOC has authority under Title VII to directly file a civil action if it has "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by" Title VII. Different procedures apply in which a three-judge panel will preside over the case if the EEOC certifies that the case is of "general public importance." Title VII does not preempt inconsistent state law, and the EEOC is tasked with working with state and local authorities in various respects.

Determining What Constitutes a Disability

Determining what constitutes a disability is not always easy. For example, current drug and alcohol abuse or use is not considered a "disability" under the ADA, but drug and alcohol addiction is considered a "disability." In 2010, the EEOC filed a complaint on behalf of an individual who was severally obese, which resulted in the employer agreeing to pay a settlement.53 Where the line is between overweight and severally obese exists is not always clear. In light of the 2008 amendments, in close cases, it is better to err on the side of assuming that a condition constitutes a disability under the ADA. Because the ADA prohibits discrimination only against "qualified" applicants—i.e., those that can, with or without reasonable accommodations, perform the required job-related functions— employers often face the delicate task of determining whether someone who is otherwise disabled can perform the required job functions. Requesting a pre-employment medical examination or simply inquiring whether an individual has a disability is unlawful under the ADA. It is acceptable, however, to inquire whether a prospective employee can perform job-related tasks, so long as the covered entity does not ask specifically about any disabilities. Once a job offer has been extended, a covered entity may require a medical examination—and condition employment on the results of that examination—if the following requirements are satisfied: (1) all entering employees are subject to the same examination; (2) information about any medical condition is kept separately from other information and treated as a confidential medical record; and (3) the results of the test are used only in accordance with the other provisions of the ADA. Regardless of these provisions, no medical examination or inquiry into whether a person has a disability is ever permitted unless the exam or inquiry is both job-related and consistent with business necessity. Drug testing is not considered a "medical examination" under the terms of the ADA.

Enforcement

Enforcement of Title II of GINA is largely conducted in the same manner as enforcement under Title VII of the Civil Rights Act of 1964. This includes the right to an individual private cause of action, following administrative exhaustion. For certain government employers that might not be covered under the Civil Rights Act, enforcement is conducted by the EEOC in accordance with its mandate to police government agencies for discrimination in employment.

U.S. Anti-Discrimination Laws

Federal law contains many statutes that are designed to prevent various types of employment discrimination. Employers may not discriminate against those over the age of 40 pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"),1 or against persons who have filed for bankruptcy, as set forth in the Bankruptcy Act.2 Additionally, the Pregnancy Discrimination Act—which amended the Civil Rights Act of 1964—prohibits discrimination due to pregnancy, childbirth, and related medical conditions. The Equal Pay Act of 1963 prohibits wage disparity on the basis of sex. While federal law safeguards certain "protected classes" of people based upon sex, race, religion, and other categories, state law may protect other classes of individuals. Many states, for example, have laws prohibiting discrimination based upon marital status. Employment discrimination is a complex area of legal practice. Therefore, as with the discussions of criminal law and national security law, a full explanation of all the nuances involved in employment discrimination is outside the scope of the CIPP/US Exam and this study guide. Below we address in slightly more detail three specific laws identified as being tested on the CIPP/US Exam: (i) Title VII of the Civil Rights Act of 1964; (ii) the Americans With Disabilities Act ("ADA"); and (iii) Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Each of these laws is enforced by the Equal Employment Opportunity Commission ("EEOC"). To some extent, each of these laws limits the types of questions that employers may ask of employees or prospective employees.

Congressional Clarification of "Disability"

In 2008, Congress amended the ADA in part to overturn two Supreme Court cases.45 The ADA Amendments Act of 2008 specifically overturned the decisions Sutton v. United Air Lines46 and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.47 In Sutton, the Court held that a case of myopia that was correctable by glasses was not a "disability" under the ADA because, as defined, a disability "exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures are not taken."48 By passing the ADAAA, Congress "reject[ed] the requirement . . . that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures." In Toyota Motor Manufacturing, Kentucky, Inc., the Court held that carpal tunnel did not substantially limit performing manual tasks under the ADA because "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives" and "[t]he impairment's impact must also be permanent or long-term." The 2008 amendments set forth a more fulsome definition of what constitutes a "disability" under the ADA and provided rules of construction regarding how to interpret that term. As amended, the term "disability" should be construed expansively and includes disabilities that are otherwise episodic or in remission.

Prohibited Discrimination

In its current iteration, Title VII prohibits discrimination in employment based upon race, color, religion, sex, or national origin.10 The Equal Employment Opportunity Commission ("EEOC") has interpreted this to also bar discrimination on the basis of sexual orientation and gender identity. Only employers that have 15 or more employees are subject to this prohibition. Similar prohibitions apply to employment agencies, labor organizations, and training programs. There are exceptions to these rules where race, color, religion, sex, or national origin is a "bona fide occupational qualification" or where a religious organization seeks to hire employees of its particular religion. The discrimination that Title VII seeks to eliminate extends beyond individual cases of discrimination. Under Title VII, employers are prohibited from adopting any generally applicable employment practice where race, color, religion, sex, or national origin is a "motivating factor" for its adoption. Additionally, Title VII also contains provisions aimed at trying to prevent "disparate impact" based upon race, color, religion, sex, and national origin. A disparate impact is an adverse effect caused by a facially neutral practice that, despite this facial neutrality, is nevertheless discriminatory. A plaintiff, however, must satisfy a much higher standard in order to establish that employment practices have created a disparate impact. Title VII also makes it unlawful to retaliate against an individual for opposing a discriminatory practice.

When It Applies

The ADA regulates "covered entities," which include—like the Civil Rights Act—employers, employment agencies, labor unions, and joint labor-management committees. And, also like under the Civil Rights Act, an employer is subject to the ADA only if it has 15 or more employees. Title I prohibits covered entities from discriminating against qualified individuals in employment on the basis of a disability. As defined under the ADA, a "disability" is any physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such impairment, or being regarded as having such an impairment. The ADA provides an illustrative, non-inclusive list of what constitutes a "major life activity," which includes the following: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."

Americans With Disabilities Act (ADA)

The Americans With Disabilities Act of 1990 ("ADA")38 contains numerous provisions that prohibit discrimination against those with disabilities, which are broadly similar to those anti-discrimination provisions of the Civil Rights Act. Title I of the ADA specifically deals with employment discrimination.

Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 19646 prohibits discrimination on the basis of race, color, religion, sex, or national origin in a wide variety of contexts. Title VII of the Civil Rights Act specifically deals with employment discrimination.7 Title VII underwent two significant revisions with the passage of the Civil Rights Act of 19918 and the Lilly Ledbetter Fair Pay Act of 2009.

Enforcement

The EEOC has authority to issue rules and regulations to effectuate the ADA. Likewise, the EEOC's enforcement authority under the ADA is the same as that under the Civil Rights Act, with the same applicable rules and procedures.61 The right of an aggrieved individual to bring a private cause of action is also the same under the ADA as it is under the Civil Rights Act.

Genetic Information Nondiscrimination Act of 2008 (GINA)

The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits employers from discriminating against individuals based upon his or her genetic information. GINA is broadly overseen by the Department of Health and Human Services. As noted in our discussion of GINA inModule II.A.4, GINA actually amended various laws already in existence—e.g., the Employment Retirement Income Security Act ("ERISA"), the Social Security Act, and the Health Insurance Portability and Accountability Act ("HIPAA")—rather than serving as a standalone federal statute. Though GINA was not standalone federal legislation, Title II of GINA enacted Chapter 21F to Title 42 of the United States Code, entitled "Prohibiting Employment Discrimination on the Basis of Genetic Information." This chapter is enforced by the Equal Employment Opportunity Commission (EEOC).

Key Points

There are many laws that prevent employment discrimination, including: AEDA (age discrimination against those 40 years old or older); Bankruptcy Act (those who have previously filed for bankruptcy); Pregnancy Discrimination Act (pregnancy, childbirth, and related medical conditions); Equal Pay Act of 1963 (wage disparity on the basis of sex) Title VII of the Civil Rights Act of 1964 ("CRA") prohibits employment discrimination on the basis of race, color, religion, sex, or national origin This law created the EEOC Only applies to employers with 15 or more employees, employment agencies, labor unions, and joint labor-management committees Seeks to prohibit direct discrimination, where discrimination is a "motivating factor" in policy, and indirect "disparate impacts" resulting from discriminatory practices Plaintiffs must exhaust administrative remedies by filing a charge before the EEOC before proceeding to a private cause of action in court Does not preempt state law Title I of the Americans With Disabilities Act ("ADA") prohibits employment discrimination against "qualified" individuals with disabilities Applies to the same entities covered by Title VII of the CRA A "disability" is any physical or mental impairment that substantially limits one or more major life activities Congress overturned two Supreme Court cases to make clear that (1) disability is not determined by reference to the ameliorative effects of treatment (Sutton) and (2) a disability may be episodic or in remission (Toyota Manufacturing) Current drug or alcohol abuse is not a disability, but drug or alcohol addiction is a disability In close cases, employers should err on the side of assuming a condition is a disability Cannot enquire about disability, but can inquire about ability to perform job-related tasks Pre-employment medical exams are permitted in only limited situations Enforced the same way as Title VII of the CRA Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits employment discrimination on the basis of genetic information (excluding sex and age) Prohibits employers from requesting genetic information Enforced the same way as Title VII of the CRA

Prohibited Discrimination

Under Title II, it is unlawful for an employer to discriminate in offering or revoking employment, or in the compensation or terms of employment, on the basis an employee or prospective employee's "genetic information." As defined, genetic information includes information about an individual's genetic tests or genetic tests of family members, and information about the manifestation of a disease or disorder in family members of an individual. Information about sex and age are expressly excluded from this definition.69 In addition to prohibiting discrimination based upon genetic information, GINA also bars employers from requesting, requiring, or purchasing genetic information about employees or their family members, except in certain limited situations. Exceptions under this rule exist for when: (i) the request is inadvertent; (ii) it is part of a voluntary wellness program offered by the employer and written authorization is obtained; (iii) the request is made to comply with the Family Medical Leave Act; (iv) a purchase is made of commercially or publicly available information; (v) if information is used as part of monitoring for workplace toxins and written authorization is obtained or required by law; and (vi) where information is used as part of law enforcement or for human remains identification. Regulations adopted under GINA provide significantly greater detail on when each of these exceptions is applicable. Similar prohibitions on both discrimination and obtaining genetic information apply to employment agencies, labor unions, and training programs. Collectively, with employers, these entities are referred to in the applicable regulations as "covered entities." This should not be confused with the definition of covered entity under HIPAA, which has an entirely separate definition. Beyond the requirement not to discriminate, covered entities are also prohibited from causing or attempting to cause another covered entity to discriminate on the basis of genetic information. A covered entity is also prohibited from retaliating against an employee that opposes an act made unlawful by GINA. To the extent a covered entity does obtain genetic information, the information obtained must be kept separate from other information and such files must be treated as confidential medical records. Restrictions are also placed on subsequent disclosure.