Legal Information

Equal Opportunity Laws

Congress has enacted legislation prohibiting discrimination in many forms, including on the basis of race, color, national origin, gender, religion, age, disability, veteran status, pregnancy and alienage. These laws are made applicable to higher education through many different federal programs and regulations. The United States Constitution provides the founda­tion for equal opportunity. Passed in 1868, the Fourteenth Amendment expressly provides that state governments cannot deny any person equal protection of the law. (The concept of equal protection, as applied to the federal government, arises by implication of the due process clause of the Fifth Amendment.)

Although the Civil Rights Act of 1866 prohibited discrimination based on race in the enforcement of contracts, including contracts of employment, the modern era of equal opportunity in employment began with the Civil Rights Act of 1964. Title VI of that Act prohibits discrimination on the basis of race, color or national origin under any program or activity (such as a university) receiving federal financial assistance. Title VII prohibits such discrimina­tion in employment and adds gender and religion as protected categories.

Title IX of the Education Amendments of 1972 expanded protection against employment discrimination based on gender.  Other federal laws protect all CUA employees regarding age discrimination (1967); pregnancy, childbirth and related illness (1978); alienage and immigration reviews (1986); employee benefit plans (1990); disabilities (1973 and 1990); family and medical leave (1993); and veterans (1974 and 1996).

Under Federal equal employment opportunity laws, only job-related factors may be used to determine if an individual is qualified for a particular job. Job related is defined as that which is essential to job per­for­mance. The knowledge, skills and experience necessary to perform a particular job. Tests are job related if they test whether an applicant or an employee can perform the job in question. A rule or practice is job related if it is necessary for the safe and efficient performance of a particular job. For example, the requirement that persons working as laboratory technicians must wear safety glasses when performing certain tasks is a job-related rule. 

A consideration of equal employment opportunity law must also include state equal opportunity law, which is often more stringent, and offers the employee more protection than federal law. As noted above, the categories protected under federal statutes include race, color, religion, gender, age, national origin, disability and veteran status. As an example of a local law, the D.C. Human Rights Law, in addition to covering the just listed federal categories,  prohibits employers from dis­charg­ing, failing or refusing to hire, or otherwise discriminating against any individual with respect to employment because of the person’s marital status, personal appear­ance, sexual orientation, family responsibilities, matriculation or political affiliation. (D.C. Code Ann. §2-1402.11)

An overview of the some of the major federal non-discrimination laws

The Civil Rights Act of 1964 (Title VI and Title VII)

Title VI prohibits discrimination on the basis of race, color or national origin under any program or activity receiving federal financial assistance.  Employment discrimination is covered by Title VI if the primary objective of the financial assistance is the provision of employment or where employment discrimination causes discrimination in providing services under such programs.  Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. In certain instances, differential treatment is allowed for religion, sex, or national origin if it is a bona fide occupational qualification.  Sexual harassment is also prohibited under this law as are all forms of harassment based on membership in a protected class.

Genetic Information Nondiscrimination Act of 2008 (GINA)

Title I of the Law amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, and addresses the use of genetic information in health insurance. Title II prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. GINA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing Title II of the Act by May 21, 2009 (one year after the law’s enactment).

Title II applies to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. It also covers Congress and federal executive branch agencies. Title II of GINA is effective Nov. 21, 2009.  

Genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.

Title II of GINA prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.

Pregnancy Discrimination Act of 1978 (amends Title VII)

Prohibits discrimination on the basis of pregnancy, childbirth, or related illness in employment opportunities, health or disability insurance programs, or sick leave plans.

Family and Medical Leave Act of 1993

This law provides qualified employees with up to 12 weeks unpaid leave in any 12 month period for the following: the birth of a child and its care during the first year; the adoption of a child or placement of a foster child; care of the employee's spouse, child or parent with a serious health condition; or the serious health condition of the employee.

Age Discrimination in Employment Act of 1967

Prohibits employment discrimination based on age with respect to persons who are at least 40 years of age.  Mandatory retirement for faculty, whether tenured or not, is unlawful. Exemption for high level managers in bona fide executive or high policy making positions.Does not per se prohibit the asking of age or date of birth on a job application, but indicates that such action will be closely scrutinized for legitimate business purpose.

Americans with Disabilities Act of 1990

Title I of the ADA prohibits employment discrimination against a qualified individual with a disability.  The law requires that reasonable accommodations be made to allow the employee to perform the essential functions of the job, or to assist the employee in the application process if necessary.  The ADA contains strict confidentiality requirements for medical information related to employee's disabilities.  The law also contains requirements for elimination of physical barriers to access. 

The Immigration and Nationality Act

This law prohibits discrimination because of national origin against U.S. citizens, U.S. nationals, and authorized aliens.  The law also prohibits discrimination because of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization:  permanent residents, temporary residents, refugees, and asylees.  A U.S.-citizens-only policy is only legal when state, federal or local law, or government contracts require hire of a U.S. citizen. 

Miscellaneous Employment Laws
In addition to all of the federal laws governing non-discrimination in the employment setting, employers must also be intimately familiar with a number of other federal laws that govern the interactions between and employer and the work force of the employer. These laws include a number of labor laws, such as the Fair Labor Standards Act and The Labor Management Reporting and Disclosure Act, to laws that defy easy categorization, such as the Health Insurance Portability and Accountability Act of 1996, or HIPAA.  What follows is a summary of some of the major employment laws that impose ministerial duties on the day to day activities of college and university administrators.

The Occupational Health and Safety Act of 1970

OSHA deals with the protection of workers in the workplace.  The law requires employers to train employees on hazards in the workplace, to provide information to employees, to report occupational injuries and illnesses to the federal government, and to keep records of same, and to provide controls and protective equipment as well.

The Fair Labor Standards Act of 1938

Establishes minimum hourly wage (as of September 1, 1997, $5.15 per hour; for youth under 20 years of age, no less than $4.25 per hour).  (Note that higher rates may apply in certain states.)  The law also establishes overtime pay requirements for non-supervisory employees.  Employees may not be required to work more than forty hours per seven-day  week without overtime compensation at a rate of not less than one and one-half times their regular pay. Exemptions from the overtime compensation provision are provided for workers who are employed in bona fide executive, administrative or professional capacity.  Faculty and lecturers are covered under the category of "bona fide professionals".

Employee Retirement and Income Security (ERISA)

ERISA establishes standards of conduct, responsibility and obligations for fiduciaries of employee benefit plans.  This includes various health benefits, disability benefits, unemployment compensation benefits, retirement plans and income deferral programs.  The law also limits the remedies available to workers.  A person in an employer-sponsored health care plan may recover the benefits and obtain an injunction clarifying the right to future benefits, but the law does not allow compensation for lost wages, death or disability, pain and suffering, or emotional distress.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

Title I of HIPAA is the Health Insurance Reform Section, and it restricts an employer's ability to use pre-existing condition exclusions or limitations; requires almost all employes to comply with certification requirements, imposes special enrollment period rules on group health plans, and restricts group health plans from discriminating in coverage on the basis of health status.

Title II contains the Administration Simplification Provisions of HIPAA, and addresses the security and privacy of health data.