Understanding Eeo Laws: Do They Apply To Management?

Equal Employment Opportunity (EEO) laws prohibit discrimination against a job applicant or employee based on their race, colour, religion, sex, age, national origin, and physical or mental disability. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Most employers with at least 15 employees are covered by EEO laws (20 employees in age discrimination cases). So, how do these laws apply to management? Managers play a crucial role in ensuring EEO compliance within their organizations. They are responsible for creating a culture of equality and respect, fostering a healthy and thriving work environment, and protecting their employees from discrimination and harassment. Managers need to be familiar with EEO laws to effectively carry out these responsibilities and navigate various scenarios that may arise in the workplace.

What is workplace harassment?

Workplace harassment is any unwelcome verbal or physical conduct that is so objectively offensive as to alter the conditions of the victim’s employment. This includes unwanted touching, comments about a person’s clothing, anatomy or looks, insulting or intimidating comments, letters, calls or emails, display of racially charged symbols and/or unwanted questions about social/sex life. Workplace harassment can be perpetrated by a supervisor, a supervisor in another area, an agent of the employer, a co-worker, or non-employee.

What constitutes a hostile work environment?

A hostile work environment is characterised by fear, apprehension, and official complaints about bullying or discrimination. It is a workplace that makes employees feel uncomfortable, scared, or intimidated due to unwelcome conduct.

To determine whether a work environment qualifies as hostile, ask the following questions:

• Does the behaviour discriminate against an EEOC-protected category (gender, race, age, religion, ability, nation of origin, sexual orientation)?
• Would a reasonable person find the environment hostile?
• Has the behaviour been ongoing and/or pervasive?
• Has the victim or victims lost their motivation or ability to complete their assigned work tasks as a result of the environment?
• Have issues been reported and not investigated? Or, if nothing was reported, did management know about misconduct and fail to intervene?

If the answer to any of these questions is "yes", the work environment can legally be considered hostile.

According to the US Department of Labor, hostile work environment harassment must be both unwelcome and based on one of the EEOC-protected categories. It must also be "subjectively abusive" to the victim and "severe and pervasive". This is determined by the following:

• The frequency of the unwelcome discriminatory conduct
• The severity of the conduct
• Whether the conduct was physically threatening or humiliating, or a mere offensive utterance
• Whether the conduct unreasonably interfered with work performance
• The effect on the employee’s psychological well-being
• Whether the harasser was a superior within the organisation

Behaviours that could contribute to a hostile work environment include:

• Talking about sexual activities
• Telling mean-spirited jokes about protected categories
• Non-consensual touching
• Commenting on the victim's physical appearance
• Displaying images that are sexually suggestive or insensitive to a protected category
• Using demeaning terms or names, including slang and slurs
• Making offensive gestures
• Using crude language
• Sabotaging the victim’s work (e.g. destroying or altering files, undermining them)
• Physically threatening or harming the victim (e.g. punching walls, yelling in their face, hitting them)

What is retaliation?

Retaliation is a form of punishment or adverse action taken by an employer or manager against an employee who has filed an Equal Employment Opportunity (EEO) complaint. It is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases. Retaliation is expressly prohibited by the EEOC, which provides rules to protect employees engaging in legally protected activity (i.e. filing an EEO complaint) from retaliation.

Retaliation can take many forms, including discipline, demotion, firing, salary reduction, or job or shift reassignment. It is important to note that retaliation does not include legitimate and credible activities such as employee reviews as part of performance management, as long as they are conducted within the confines of the law.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts of opposing discrimination are also protected as long as the employee had a reasonable belief that something in the workplace may violate EEO laws, even if they did not use legal terminology to describe it.

Examples of retaliation can include:

• Reprimanding an employee or giving a lower performance evaluation than deserved
• Transferring an employee to a less desirable position
• Engaging in verbal or physical abuse
• Spreading false rumors or treating a family member negatively (e.g. cancelling a contract with the employee's spouse)
• Making an employee's work more difficult (e.g. changing their work schedule to conflict with family responsibilities)

Retaliation is not limited to actions taken directly against the employee who filed the EEO complaint. It can also extend to third parties who are closely aligned with the complaining employee, such as family members or business relationships.

If an employee suspects that their employer is retaliating against them, they should communicate with their supervisor or human resources administration about the reasons for the negative acts. If the employer is unable to provide a credible excuse, the employee may need to file a complaint with the EEOC.

What is reasonable accommodation?

Reasonable accommodation is a change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

There are three categories of reasonable accommodations:

• Modifications or adjustments to a job application process to permit an individual with a disability to be considered for a job (e.g. providing application forms in alternative formats like large print or braille).
• Modifications or adjustments necessary to enable a qualified individual with a disability to perform the essential functions of the job (e.g. providing sign language interpreters).
• Modifications or adjustments that enable employees with disabilities to enjoy equal benefits and privileges of employment (e.g. removing physical barriers in an office cafeteria).

An employer is not required to provide reasonable accommodation if it would impose an "undue hardship" on the operation of the employer's agency. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a specific accommodation.

The duty to provide reasonable accommodation is an ongoing one. An employer must provide reasonable accommodation to qualified applicants and employees with disabilities.

An employer may require that a request for reasonable accommodation be made to a certain agency official, such as a supervisor or a supervisor in the immediate chain of command. A request for reasonable accommodation can be made orally or in writing.

An employer may request medical information in connection with a request for reasonable accommodation when the disability and/or need for accommodation is not obvious. The employer may request information or documentation regarding the nature, severity, and duration of the individual's impairment; the activity or activities that the impairment limits; the extent to which the impairment limits the individual's ability to perform the activity or activities; and why the individual requires reasonable accommodation or the particular reasonable accommodation requested.

An employer must respond to a request for reasonable accommodation as soon as possible.

What is undue hardship?

Under the Americans with Disabilities Act (ADA), employers are not required to provide a reasonable accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors.

The Equal Employment Opportunity Commission (EEOC) has outlined several factors that should be considered when determining undue hardship:

• The nature and cost of the accommodation needed: This involves evaluating the type of accommodation requested and the actual cost to the employer.
• The overall financial resources of the facility: This takes into account the financial resources of the specific facility making the accommodation and the overall resources of the employer if they have multiple facilities.
• The type of operation of the employer: Employers should consider how compatible the accommodation is with the nature and structure of their business.
• The impact of the accommodation on the operation of the facility: Employers should assess how providing the accommodation will impact other employees' job performance and the overall business operations.

It is important to note that the determination of undue hardship is made on a case-by-case basis, considering the specific circumstances and details of each situation. The threshold for proving undue hardship is high, and employers have the responsibility to make this assessment and provide reasonable accommodations whenever possible.

Frequently asked questions