Summary of Federal Laws
Equal Employment Opportunity
CUA Compliance Partners
Civil Rights Act of 1964 (Title VI and Title VII)
The Law: 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.
EEOC Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Issued 4/25/12.See also the Q & A issued along with the guidance. The Q & A states nothing has changed and that this policy statement merely restates long standing policy approach in this area.
Clarification With Lilly Ledbetter Fair Pay Act of 2009
On January 29, 2009, President Obama signed this new law which is retroactive to May 28, 2007. The new law rejects the holding in Ledbetter v. Goodyear Tire and Rubber Co. In that case The Supreme Court held that the charge filing deadline on discriminatory pay begins to run with the initial pay decision, and squarely rejected the theory that each new paycheck amounted to an act of continuing discrimination. The Ledbetter law amends Title VII, the ADA, the Rehab Act and The Age Discrimination in Employment Act of 1967 to provide that the charge-filing periods would commence when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by an application of a discriminatory compensation decision or practice (including each time wages, benefits, or other compensation is paid). See the Jackson Lewis Newsletter posted January 29, 2009: Lilly Ledbetter Fair Pay Act of 2009 Becomes Law. This article contains suggested actions for employers.
Exceptions for Religious Preference by Religious Educational Institutions:
Title VII grants religious educational institutions substantial leeway in granting a hiring preference on the basis of religion if the religious educational institution is, in whole or in substantial part, owned, supported, controlled or managed by a particular religious corporation, association, or society, or if the curriculum is directed toward the propagation of a particular religion. See 42 U.S.C. § 2000e-2 (e)(2), as well as the legislative history of this amendment.
An employment preference alone would not amount to a finding that the university is pervasively sectarian, and thus ineligible for public funding. See Columbia Union College v. Clark, 159 F.3d 151 (4th Cir. 1998), cert. denied, 67 U.S.L.W. 3755 (U.S. June 14, 1999) (No. 98-1509), on remand, Columbia Union College v. Oliver, No. MJG 96-1831 (D. Md. Aug. 17, 2000) The court stated the following:
A careful reading of Roemer, Tilton and Hunt leads to the inescapable conclusion that even colleges obviously and firmly devoted to the ideals and teachings of a given religion are not necessarily "so permeated by religion that the secular side cannot be separated from the sectarian." Roemer, 426 U.S. at 759. . . . Indeed, the Supreme Court has set the bar to finding an institution of higher learning pervasively sectarian quite high. We believe that to find religion pervades a college to such a degree that religious indoctrination thoroughly dominates secular instruction, the college must in fact possess a great many of the following characteristics: mandatory student worship services; an express preference in hiring and admissions for members of the affiliated church for the purpose of deepening the religious experience or furthering religious indoctrination; academic course implemented with the primary goal of religious indoctrination; and church dominance over college affairs as illustrated by its control over the board of trustees and financial expenditures.
Columbia Union College, 159 F.3d at 163. The court also made note of the fact that the Supreme Court has never found an institution of higher education to be pervasively sectarian.
See also Columbia Union College v. Oliver, 254 F. 3d 496 ( 4th Cir. 2001).
Actions Required by Institution:
Policy compliance statement must be given to applicants and employees.
The Integrated Postsecondary Education Data System (IPEDS) Human Resources survey must be produced annually (and a copy kept for three years thereafter and made available upon request to the appropriate representatives of the federal government (see 20 U.S.C. § 1094(a)(17)).
Affirmative action if necessary.
Internal guidelines and grievance procedures required. Note, however, that grievance procedures need not be established with respect to complaints from applicants for employment or from applicants for admission.
- Adoption of anti-harassment policies and complaint procedures covering all forms of unlawful harassment.
- Recordkeeping and filing (see below).
See Compliance Obligations under Federal Non-Discrimination Statutes for a comprehensive summary of ministerial duties required under Title VI and Title VII with links to the regulations.
Recordkeeping in General: Title 29 C.F.R. § 1602.49 requires institutions of higher education to preserve any personnel or employment record for a period of two years from the date of the making of the personnel action or record involved, whichever is later. In addition, all records necessary for the completion of Human Resources Survey of the Integrated Postsecondary Education Data System (Form IPEDS) (in place of the Higher Education Staff Information Report EEO-6) must be kept for three years. For the full history of this see Record Keeping and Reporting Requirements for Independent Colleges and Universities , 2nd Edition, NACUA, edited by Joseph W. Ambash, with relevant paragraph below.* See also 29 C.F.R. § 1602.48. An institution is required to keep certain adverse impact data for two years after elimination of the adverse impact. See 46 C.F.R. § 60-3.Title 41 C.F.R. § 60-3.15(A)(2)(b) requires the institution to keep certain adverse impact data for two years after elimination of the adverse impact.
Produce Report: Title 34 C.F.R. § 100.6 and title 29 C.F.R. §§ 1602.48-50 require the filing of compliance reports in the form required by the Department of Education. Currently the form being used is the Human Resources Survey of the Integrated Postsecondary Education Data System (Form IPEDS). See 20 U.S.C. § 1094(a)(17). See About IPEDS for the list of forms and cycles for collection.
Final Revisions of the Employer Information Report (EEO-1)
The EEO-1 reports are annual requirements of employers outside of higher education. Higher education employers complete the IPEDS, which was formerly called an EEO-6 report. The employment specific portions of the IPEDS used to be almost identical to the EEO-1 data requirements. See EEO-1 Who Must File.
Brief Amici Curiae Filed March 11, 2103 by American Council on Education and others in Supreme Court Case of University of Texas Southwestern Medical Center v. Naiel Nassar, supporting Texas and arguing Congress has not authorized plaintiffs to use the mixed motive standard to prove retaliation.
US Equal Employment Opportunity Commission Q &A: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.
NACUA Notes: Paramour Favortism in the College Workplace (May 30, 2012)
Understanding Waivers of Discrimination in Employee Severance Agreements: EEOC guidance with answers to questions employees may have if they are offered a severance agreement in exchange for a waiver of their actual or potential discrimination claims
Executive Order 13279 (archived under Obama administration)
Equal Protection of the Laws for Faith Based and Community Organizations
This Executive Order signed by the President on Dec.12, 2002 insures equal protection for faith-based and community organizations administering social service programs supported with federal funds. Guidlines principles for federal agencies administering the programs are contained in the order, including the principle that no organization is to be discriminated against on the basis of religion or religious belief in the distribution of federal financial assistance under social service programs. Executive Order 11246 is amended by this Executive Order. The religious organization exemption that exists in EO 11246 is expanded to clarify that religious corporations, associations, educational institutions and societies that are federal contractors or subcontractors are allowed to exercise a preference in hiring for co-religionists. This exemption is the same as the religious exemption that exists in Title VII. As there has from time to time been confusion about the nature of the Title VII exemption, EO 13279 serves to clarify the breadth of the Title VII exemption.
updated 11-6-12 to Add EEOC Q and A
updated to add ACE brief in UT case, 3-21-13 mlo