Summary of Federal Laws

Employment

Equal Employment Opportunity                                                          

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

42 U.S.C. § 2000d; and 42 U.S.C. § 2000e 

28 C.F.R. § 42.101 et seq., 34 C.F.R. Part 100, and 45 C.F.R. Part 80

29 C.F.R. Part 1600, 41 C.F.R. §60-1.1 et seq.

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.

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).

Executive Order 13279

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.

Actions Required by Institution:

• Posting required.

• 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.

EEOC Guidance on Employment Tests and Selection Procedures (Dec. 3, 2007)

This is a new fact sheet that reminds employers about laws related to tests and test scores, with the emphasis on avoiding claims of discrimination based upon testing. See New EEO Fact Sheet Reminds Employers to Vet Screening Criteria Carefully, posted Dec. 12, 2007 by Jackson Lewis.

Changes to 2008-2009 IPEDS Prompted by Higher Education Opportunity Act:
A summary of the many tweaks to the IPEDS collection necessitated by HEOA.

Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education; 72 Fed. Reg. 59266 (Oct. 19, 2007)
Effective Dec. 3, 2007, but not implementation not required until Fall 2010 for the 2010-2011 school year. The guidance addresses two issues at the postsecondary level:

1) How educational institutions and other recipients will collect and maintain racial and ethnic data from students and staff; and
2) How educational institutions and other recipients will aggregate racial and ethnic data when reporting those data to the Department.

What is new is that students and staff may now report ethnicity and race separately, and are permitted to select more than one race. The 2 part inquiry includes expanded race categories.

Collecting:
Educational institutions and other recipients will be required to collect racial and ethnic data using a two-part question. The first question is whether the respondent is Hispanic/Latino. The second question is whether the respondent is from one or more races using the following five racial groups: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White. Respondents will not be offered the choice of selecting a ``two or more races'' category.

Reporting:
When reporting data to the Department, educational institutions and other recipients will report aggregated racial and ethnic data in the following seven categories:
    (1) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only,
    (2) American Indian or Alaska Native,
    (3) Asian,
    (4) Black or African American,
    (5) Native Hawaiian or Other Pacific Islander,
    (6) White, and
    (7) Two or more races.

Missing Data:

Postsecondary institutions use self-identification only and do not use observer identification. Postsecondary institutions will also be permitted to continue to include a ``race and ethnicity unknown'' category when reporting data to the Department. This category is being continued in the Integrated Postsecondary Education Data System (IPEDS) because the National Center for Education Statistics' experience has shown that (1) a substantial number of college students have refused to identify a race and (2) there is often not a convenient mechanism for college administrators to use observer identification.

Maintenance:  Insitutions must maintain racial and ethnic data for a minimum of three years.  In the case of litigation, a claim, audit or any other action involving the records, the data must be retained until the end of the action.

For additional assistance with this final guidance, see the National Center for Education Statistics' Changes to Race/Ethnicity Reporting to IPEDS. 

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.

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.

EEOC Policy Guidance on Race and Color Discrimination

On April 19, 2006, the EEOC released section 15 of a the "new" compliance manual, which covers race and color discrimination. This manual section provides guidance on analyzing charges of race and color discrimination under Title VII of the Civil Rights Act of 1964. See also the new Questions and Answers document that accompanies the guidance. See the Jackson Lewis May 18, 2006 newsletter entitled EEOC Takes Action on Race and Color Discrimination, Class-Wide Bias, and Age Claims.

  Selected Case Law Under Title VII

Resources:

OCR Case Processing Manual: The March 2008 Case Processing Manual (CPM) sets forth OCR procedures for investigating complaints.  See the notice specifying the revisions made to the manual.

EEO-1 Who Must File

EEOC Compliance Manual 

* From Second Edition of Record-Keeping and Reporting Requirements for Independent and Public Colleges and Universities, edited by Joseph W. Ambash available from NACUA.

"Pursuant to Title VII and the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., the Equal Employment Opportunity Commission ("EEOC") has promulgated specific record-keeping and retention procedures relating to the composition of a work force according to race, ethnicity, sex and disabilities, as defined under the law. See 29 C.F.R. §§ 1602.7 - 1602.27. Prior to 1993, institutions were required to maintain all records and information therefrom, "which were . . . necessary for the complet[ion] of Higher Education Staff Information Report, EEO-6." Id. at § 1602.48. The EEO-6 was filed biennially by every institution that had 15 or more employees. 29 C.F.R. § 1602.50.

Beginning in 1993, the Department of Education, National Center For Education Statistics (NCES), assumed the responsibility of compiling all information previously submitted on the EEO-6 onto a new reporting form -- the Integrated Post Secondary Education Data System Survey (IPEDS). The IPEDS thus replaced the EEO-6 report formerly required by EEOC.  See IPEDS History for more information. All records used to complete the EEO-6 or the IPEDS, and the information therefrom, must be retained for a period of three years "at the central administrative office of [the institution], at the central administrative office of a separate campus or branch, or at an individual school which is the subject of the records and information, where more convenient." 29 C.F.R. § 1602.48."

updated 2/4/09 to add Lilly Ledbetter Fair Pay Act
links updated 2/26/09 rab

updated 3/1/09 to add compliance partners mlo
compliance box links updated 6/2/09 rab

updated by mlo 6/8/09 to add related policies