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Human resources compliance is an area that traces back to the very origin of the human resources function. Compliance continues to be a very important area that HR manages, and there are numerous regulations and laws that govern the employment relationship. HR professionals must be able to understand and navigate these laws to help their organizations remain compliant and avoid having to pay fines or penalties. The additional threat of reputational harm to the organization is another reason that HR needs to be aware and alert to any potential gaps in compliance.
The Equal Employment Opportunity Commission (EEOC) enforces laws against job discrimination. This agency was created by the Civil Rights Act of 1964. Its mission is to stop and fix illegal job discrimination. The EEOC specifically enforces rules against discrimination based on protected classes such as race, color, national origin, religion, and sex. In 1972, Congress expanded these protections to include federal government employees and gave the EEOC the power to sue private employers.
In addition to Federal laws, there are state and local laws that govern employment. HR must be versed in all levels of laws that impact employees and their rights.
Anti-discrimination laws and legislation are vital in promoting fairness and equality in the workplace. These laws prohibit unfair treatment based on characteristics, known as protected classes, like race, gender, religion, age, disability, and more. They ensure that all employees have equal opportunities and are protected from bias and prejudice. By following these laws, employers create a more inclusive and respectful work environment, where everyone has the chance to succeed based on their abilities and merits.
History.com notes that “The Civil Rights Act of 1964, which ended segregation in public places and banned employment discrimination on the basis of race, color, religion, sex or national origin, is considered one of the crowning legislative achievements of the civil rights movement.” Civil rights leader Martin Luther King, Jr. called the Act a “second emancipation.” The Act was first proposed by President John F. Kennedy, who said, “the United States ‘will not be fully free until all of its citizens are free.’” (History.Com, 2019) Despite strong opposition from southern Congressional members, including a record 75-day filibuster and a 14-hour speech by former Ku Klux Klan member and West Virginia Senator Robert Byrd, the Act passed and was signed into law by President Kennedy’s successor, Lyndon B. Johnson.
The authors of Fundamentals of Human Resource Management, DeCenzo, et.al., state that “no single piece of legislation has had a greater effect on reducing employment discrimination than the Civil Rights Act of 1964.”
For Human Resource Management, the section or “title” of the Civil Rights Act that’s particularly important is Title VII, which, as amended, “protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion.” (USEEOC, 2019) Title VII makes it illegal to discriminate against any employee or job applicant because of race or color in hiring, firing, promotion, pay, job training, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination but also neutral policies that disproportionately exclude minorities and are not job-related. Title VII applies to private sector employers with fifteen or more employees, federal government employers, employment agencies, and labor organizations.
Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. The law also makes it illegal to retaliate against a person because they complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law requires employers to make reasonable accommodations for applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.
In the early 1990s, the Civil Rights Act of 1991 was created to counteract several Supreme Court decisions that weakened discrimination protections. Essentially, the law reversed these decisions, reinstating the employer’s burden of proof and the disparate impact theory of discrimination. It also changed Title VII to allow jury trials and compensatory damages and punitive damages in cases of intentional discrimination.
Specifically, the Act stated that if a plaintiff could show that discrimination was a motivating factor in an employment decision, the employer would be liable for injunctive relief, attorney’s fees, and costs, even if the employer could prove it would have made the same decision without a discriminatory motive.
Additionally, the Act extended employment discrimination protections to employees of Congress and expanded coverage to include American and American-controlled employers operating abroad.
IN CONTEXT
Consider a company with a policy that requires all employees to work overtime to be eligible for promotions. On the surface, this policy seems fair and applies to everyone equally. However, it inadvertently disadvantages employees with caregiving responsibilities, often women, who may not be able to stay late due to family commitments. As a result, these employees are less likely to be promoted, not because of their performance or capabilities, but because the policy doesn’t account for their circumstances. This subtle form of disparate treatment highlights how seemingly neutral policies can create unequal opportunities.
A bona fide occupational qualification (BFOQ), is a legal concept that allows employers to hire employees based on specific characteristics that are essential to the job. This means that in certain situations, it is lawful to consider factors like sex, religion, or national origin when making hiring decisions.
EXAMPLE
If a Catholic school hires only Catholic teachers to teach religion classes, it is because teaching religious principles is a core part of the job.It’s important to note that BFOQs are strictly regulated and cannot be based on race or color, and the qualification must be necessary for the operation of the business, not just a preference.
EXAMPLE
In the airline industry, there was a time when airlines hired only female flight attendants, claiming it was a BFOQ. However, this practice was challenged and changed because being female was not essential to performing the duties of a flight attendant.Understanding BFOQs helps ensure that employment practices are fair and legally compliant while recognizing the unique needs of certain jobs.
In HR, it’s essential to understand and follow employment laws and regulations. These rules are designed to protect both employees and employers, ensuring fairness and equality in the workplace. They cover a wide range of issues, from preventing discrimination and ensuring fair wages to providing safe working conditions and accommodating various needs. Below are some common laws and regulations that govern work and employee rights.
| Act Title | Description |
|---|---|
| Equal Pay Act of 1963 | The Equal Pay Act of 1963 makes it illegal to pay different wages to men and women if they perform equal work in the same workplace. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. |
| Fair Labor Standards Act (FLSA) of 1938 | The Fair Labor Standards Act (FLSA) of 1938 establishes the minimum wage, overtime pay, recordkeeping, and youth employment standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Special rules apply to state and local government employment involving fire protection and law enforcement activities, volunteer services, and compensatory time off instead of cash overtime pay. |
| Age Discrimination in Employment Act (ADEA) of 1976 | ADEA protects applicants and employees 40 years or older from discrimination because of age and for retaliation for a discrimination complaint or related action. ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations, and the federal government. As mentioned above, it is generally unlawful to state an age-related preference in job advertisements except when age is demonstrated to be a BFOQ. |
| Pregnancy Discrimination Act of 1978 | The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act. The Act makes it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. SHRM notes that “the basic principle is that a woman affected by pregnancy or other related medical condition must be treated the same as any other applicant in the recruitment and selection process.” The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. |
| Pregnant Worker Fairness Act (PWFA) of 2023 |
The Pregnant Workers Fairness Act (PWFA) was passed to ensure that pregnant workers receive fair treatment in the workplace. It went into effect on June 27, 2023. This law requires employers to provide reasonable accommodations for workers who have limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship for the employer.
The PWFA protects employees and job applicants by ensuring they are not discriminated against due to pregnancy-related conditions. For example, if a pregnant worker needs more frequent breaks or a temporary change in duties, the employer must accommodate these needs as long as it doesn’t significantly disrupt business operations. This law is crucial because it helps maintain a fair and supportive work environment, allowing pregnant workers to continue their jobs without fear of discrimination or unfair treatment. |
| Americans with Disabilities Act (ADA) of 1990 |
The Americans with Disabilities (ADA) makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business. |
| Genetic Information Nondiscrimination Act (GINA) of 2008 | GINA makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members (i.e. an individual’s family medical history). The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. |
| National Labor Relations Act (NLRA) of 1935 | The National Labor Relations Act (NLRA) which was later amended in 1947, extends rights to many private-sector employees, including the right to organize and bargain with their employer collectively. Employees covered by the act are protected from certain types of employer and union misconduct and have the right to attempt to form a union where none exists |
| Worker Adjustment and Retraining Notification Act (WARN) of 1988 | The Worker Adjustment and Retraining Notification Act (WARN) of 1988 generally covers employers with 100 or more employees, not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week. Regular federal, state, and local government entities that provide public services are not covered. WARN protects workers, their families, and communities by requiring employers to provide notification 60 calendar days in advance of plant closings and mass layoffs. |
An Executive order is a directive issued by the President of the United States that manages operations within the federal government. These orders have the force of law and can impact various aspects of employment and business practices. For HR professionals and companies, it’s crucial to stay informed about relevant executive orders, as they may require changes in policies, procedures, or compliance efforts.
Executive orders can cover a wide range of topics, from workplace safety standards to non-discrimination practices. For example, an executive order might mandate new safety protocols to protect employees from health hazards or require companies to implement policies that prevent discrimination based on race, gender, or other protected characteristics. By understanding and adhering to these orders, HR ensures that the organization remains compliant with federal mandates and fosters a lawful and ethical work environment.
Staying updated on executive orders is essential for HR professionals because these directives can be issued or rescinded at any time and may require immediate action. Ignoring or failing to comply with an executive order can result in legal consequences and damage the organization's reputation. Therefore, HR departments must regularly review and update their policies and procedures to align with the latest executive orders, ensuring that the organization operates within the bounds of the law and maintains a safe and inclusive workplace for all employees.
The Supreme Court has contributed to diversity and preventing discrimination and, equally importantly, clarifying what is permissible under the law.
| Phillips v. Marin Marietta Corp. (1971) | The Supreme Court holds that Title VII’s prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school age children. In practical terms, EEOC’s policy forbids employers from discriminating against women with young children. |
| Griggs v. Duke Power Co. (1971) | The Supreme Court has ruled that if an employer uses a neutral policy, rule, or test that ends up negatively impacting minorities or women more than others, the employer must prove that this policy or test is necessary for the business. In other words, the employer needs to show that the rule or test is essential for the job and not just a way to unfairly disadvantage certain groups. |
| Espinoza v. Farah Manufacturing Co. (1973) | The Supreme Court has decided that non-citizens are protected under Title VII. It also says that requiring someone to be a citizen could violate Title VII if it ends up discriminating against people based on where they come from. |
| Alexander v. Gardener-Denver Co. (1974) | The Supreme Court rules that an employee who submits a discrimination claim to arbitration under a collective bargaining agreement is not precluded from suing his or her employer under Title VII. The court reasons that the right to be free of unlawful employment discrimination is a statutory right and cannot be bargained away by the union and employer. |
| UAW v. Johnson Controls (1991) | The Supreme Court looked at the issue of fetal hazards. In this case, an employer stopped women of childbearing age from doing certain jobs because of potential harm to a fetus. The Court decided that this restriction was sex discrimination under Title VII. They also said that the employer’s policy could only be justified if being able to have children was a necessary qualification for the job. Just because the job was risky for fertile women didn’t mean all fertile women could be banned from it. |
| Oncale v. Sundowner Offshore Services (1998) | In a unanimous decision, the Supreme Court ruled that same-sex sexual harassment counts as sex discrimination under Title VII. The Court emphasized that the person bringing the case must show that the harassment happened because of their sex and that it was severe. |
The Equal Employment Opportunity Commission (EEOC) is a crucial federal agency dedicated to enforcing laws that prohibit workplace discrimination. The EEOC’s primary function is to investigate complaints from employees who believe they have been unfairly treated. When discrimination is identified, the EEOC can take corrective actions, which may involve working with the company to amend policies or pursuing legal action if necessary.
For HR professionals, a thorough understanding of the EEOC’s guidelines is essential. It enables them to develop and implement policies that promote fairness and equality within the workplace. This not only mitigates the risk of legal repercussions but also fosters a more inclusive and positive work environment. Employees who perceive their workplace as fair and equitable are generally more engaged and productive. To further enhance these efforts, HR can proactively conduct regular training sessions on diversity and inclusion, ensuring that all employees are aware of and adhere to these important principles.
If an employee believes they have been discriminated against at work based on a protected category, they can file a complaint with the EEOC or a state or local agency. Filing a charge of discrimination involves submitting a signed statement asserting that an employer, union, or labor organization engaged in employment discrimination.
This claim serves as a request for the EEOC to take remedial action. The EEOC is required to accept all claims related to discrimination. If the EEOC finds that the laws it enforces are not applicable to a claim, that a claim was not filed in a timely manner, or that it is unlikely to be able to establish that a violation occurred, the agency will close the investigation and notify the claimant.
In some cases, the agency will ask both the claimant and employer to participate in mediation. This process involves a neutral mediator who assists the parties in resolving their employment disputes and reaching a voluntary, negotiated agreement.
If the charge is not sent to mediation, or if mediation doesn’t resolve the charge, the EEOC will generally ask the employer to provide a written response to the charge, referred to as the “Respondent’s Position Statement.” The EEOC may also ask the employer to answer questions about the claims in the charge.
Once the investigation has been completed—on average, a ten-month process—the claimant and employer are notified of the result. If the EEOC determines the law may have been violated, the agency will attempt to reach a voluntary settlement with the employer. If that is not possible, the case will be referred to the EEOC’s legal staff (or, in some cases, the Department of Justice) to determine whether the agency should file a lawsuit.
Protecting employee information is a crucial responsibility for HR professionals. This task involves understanding and adhering to various federal, state, and local laws designed to safeguard personal data. HR’s role extends beyond just compliance; it includes educating employees about their rights and ensuring that sensitive information is handled with the utmost care. Imagine the chaos if personal details were mishandled or leaked. It’s essential for HR to stay updated on legal requirements and best practices to maintain trust and security within the organization. By doing so, HR helps create a safe and respectful workplace for everyone.
Key legislation, regulations, and laws protecting employees’ information include the following on a Federal level. But there are also state and local laws that govern how employee information must be kept, stored, and shared.
| Fair Credit Reporting Act (FCRA) | FCRA is a federal law that regulates the collection of consumers’ credit information and access to their credit reports. An employer must obtain a candidate’s written consent to request his or her credit report. An employer must notify a candidate if the information in his or her credit report was the basis of a negative decision |
| Privacy Act (1974) | This act, which applies only to federal government agencies, requires employers to provide employees with access to their personnel files. State law may provide private sector and state and local government employees rights similar to The Privacy Act. |
| Employee Polygraph Protection Act (EPPA) | This act prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. |
Source: This Tutorial has been adapted from "Human Resources Management" by Lumen Learning. Access for free at https://courses.lumenlearning.com/wm-humanresourcesmgmt/. License: CC BY: Attribution.
REFERENCES
History.com Editors. (2010, January 4). "Civil Rights Act of 1964." History.com.
USEEOC. (2019). "Title VII of the Civil Rights Act of 1964." U.S. Equal Employment Opportunity Commission. https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination
Staff Report. (1999, December 24). "The BFOQ Exception to Discrimination Laws." WorkForce. https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination
FTC. (2019). "Title VII of the Civil Rights Act." Laws.https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination
