Online Training Programs Available
The Office of Diversity, Equity & Inclusion has established an on-line, web-based training program for faculty, staff and students titled Preventing Employment Discrimination. This interactive on-line training resource is simple to use. The primary goal of this course is to enable users to identify, avoid and report behaviors that appear to violate employment discrimination laws. With this knowledge, users can help keep the University of Massachusetts Dartmouth free of discrimination and promote a respectful environment.
You can find the resource at: http://training.newmedialearning.com/ped/umassdartmouth/
Frequently Asked Questions:
What kind of discrimination isn't allowed in the workplace?
Through a variety of laws, mostly federal, it is generally illegal to discriminate based on race, color, gender, national origin, religion, disability, citizenship, age and pregnancy. Some states offer protection to additional categories such as sexual orientation, marital status and weight.
I have an employee who is complaining about discrimination, what should I do?
Even if you consider the complaint trivial or ridiculous, it's important to prevent an EEOC complaint or a lawsuit that you take the complaint seriously. Investigate the complaint thoroughly and if there is any basis for the allegation, find a remedy for the problem as quickly as possible.
Can I fire or reprimand an employee who complains about discrimination?
No. Almost all antidiscrimination laws have provisions that prevent retaliation and if you fire an employee for complaining, expect a lawsuit. You don't even have to fire someone who complains to fall afoul of the law: other forms of retaliation, such as a reprimand or refusal to promote, may be grounds to file a lawsuit for retaliation.
What is sexual harassment?
Sexual harassment refers to unwelcome sexual advances or conduct on the job that creates an intimidating, hostile or offensive workplace. Whether something is offensive is judged by asking whether a reasonable person should have to endure the conduct in question.
What is age discrimination?
Age discrimination occurs when an employer makes an employment decision based on an employee's age or on stereotypes about age or youth. Even if you honestly believe that younger, fresh faced sales people will sell more products, hiring or firing based on that belief would constitute age discrimination.
Can I discriminate based on sexual orientation?
Sexual orientation is not a protected characteristic under federal law, and whether discrimination based on sexual orientation is illegal depends on your state. Approximately fifteen states currently prohibit discrimination based on sexual orientation.
Can I require that work be done in English?
It depends on why you implement an English-only policy. If you can show that speaking English is necessary for legitimate businesses purposes, then having an English only policy may be allowed. However, if you are implementing an English only rule simply because you don't like other cultures, then this is likely illegal discrimination. If you do adopt an English only rule, then you must inform your employees of the rule and inform them of the consequences of breaking that rule.
An employee wants time off for religious reasons; do I have to give them time off?
Whether you need to give an employee time off for religious purposes depends on how reasonable it would be to give them time off. You are required to try to accommodate religious employees on significant religious holidays, but if accommodating them would be unreasonable, then you do not have to offer time off. Reasonable ways to accommodate an employee include trading one employee's shift with another and not scheduling the employee to work on important holidays. If this cannot be done reasonably, then you are under no obligation to give the employee time off.
Do I have to accommodate a disabled employee?
You are only required to reasonably accommodate a disabled employee, not do whatever they ask of you. This means you must work sincerely with the disabled employee on finding a solution to a problem and accommodating the disabled employee if to do so would be reasonable.
What is Equal Employment Opportunity?
Equal Employment Opportunity is fair treatment in employment, promotion, training, and other personnel actions without regard to race, color, religion, sex, age, national origin, and physical or mental disability. To make sure that all Federal employees and applicants for employment with the Federal Government are provided this opportunity, certain laws and regulations were issued containing the legal basis for EEO programs in Federal agencies. One of the main misconceptions of EEO is that EEO is only for selected groups. EEO is for EVERYONE: it's the LAW!
What Is an EEO Complaint?
An EEO Complaint is an allegation of discrimination because of race, color, religion, national origin, sex (including sexual harassment), age, and physical or mental handicap. Employees may also allege discrimination on the basis of sexual orientation, status as a parent and genetic testing. The complaint may arise from a specific personnel action, such as employment, promotion, work assignment, selection for training, disciplinary action, or separation, or it may relate to prevailing conditions in an organization.
What Do I do if I Have a Complaint?
If you feel that you have been discriminated against, as described above, first get all the facts on the matter to make sure there has been no misunderstanding. Feel free to speak with your supervisor, administrative officer or personnel representative.
If you are still dissatisfied and wish to utilize the EEO complaint system, you must bring the matter to the attention of the EEO Office within 45 calendar days of the occurrence of the alleged discriminatory act or effective date of the personnel action alleged to be discriminatory.
What is Diversity?
Diversity is a workforce perspective in which unique backgrounds, beliefs, values, skills, attributes, characteristics, and similarities of all people are appreciated and valued.
Is there a cost benefit to Diversity?
We can obtain a cost benefit by measuring such things as improved employee morale, lower turnover rates, higher productivity, fewer hiring costs, and decrease in absenteeism.
Why do I have to deal with Diversity issues?
When people have problems relating to each other in the workplace morale declines and productivity suffers. In addition to employee retention, a positive and inclusive work environment is important in employee recruitment.
What is Affirmative Employment?
Affirmative employment is a legal concept that requires that an organization do more than ensure that equal employment opportunity is a part of its practices. The primary objective of the affirmative employment program is to identify groups that are underrepresented in the workforce and remove organizational barriers that may impede their hiring, promotion, training, and retention.
While the program is designed to encourage management and supervisors to make additional efforts in these areas, it does not require or imply the use of "quotas," nor does it abrogate the merit principles of the personnel selection system.
For affirmative employment purposes, protected groups include Alaskan Natives/American Indians, Asians/Pacific Islanders, Blacks, Hispanics, White Females, and persons with disabilities.
Why does UMass Dartmouth establish affirmative action goals? UMass Dartmouth is considered a federal contractor. Federal contractors are required to establish and make a good faith effort to achieve affirmative action goals for females and minorities. While good faith efforts are also required for the employment and advancement in employment of protected veterans and persons with disabilities, actual numerical placement goals are not set in these instances.
How are affirmative action goals established? Goals are based on analytical studies that set placement goals for groups of jobs, not for specific positions. These groups are composed of jobs that are similar with regard to their content, pay, and opportunity. Based on a comparison to population statistics both external and internal to the university, a determination is made whether a placement goal is required. The objective of goal setting and their subsequent accomplishment is to have our workforce reflect the population from which we attract faculty and staff. Progress against placement goals is monitored based on the number of hiring or promotional opportunities that occurred in under-represented job groups.
How do I know if there is a goal within my area of responsibility? When an opening occurs, the Office of Diversity, Equity & Inclusion will check that opening against established placement goals. If there is a placement goal, they will notify the search committee. Then the search committee will initiate a good faith effort to attract qualified candidates to fill the position. A special outreach recruiting action is one example of such a good faith effort.
Is there a difference between a placement "goal' and a "quota"? A placement goal is something we must strive to achieve or make reasonable efforts to bring about a desired result. We may make such efforts and still not reach the goal. The emphasis is on striving. We are not required by law to reach goals without exception. Quotas offer no such flexibility. While it is possible for an employer to be required to achieve a specific numerical target for hiring, such situations arise as a means of correcting a long-standing situation where minorities and/or women are unable to secure employment. Such a determination would come from either a government agency as part of a conciliation agreement or through a court action. Affirmative action relies on the concept of goals, not quotas. It encourages employers to achieve desired representation of minorities and women in the workforce.
What is a search committee's responsibility, once a goal has been set for one of my positions? The committee’s responsibility is to ensure equal employment opportunity in the hiring process. Committee members are expected to interview qualified candidates, including internal candidates, who might help meet the placement goal. In addition, they are encouraged to participate in outreach activities within the community for the purpose of attracting qualified individuals to the university. Finally, they are required to keep interview records and to complete evaluation forms at the conclusion of the interview process to document the hiring decision. In no case are they required or expected to hire or promote unqualified applicants for the position.
What is meant by "good faith effort"? The objective of affirmative action is to bring about an improvement in the representation of minorities and females in the work force. The emphasis is on results. Therefore, effective good faith efforts should ultimately lead to tangible results. Examples of good faith efforts include extra outreach efforts in recruiting, an extension of a job offer to a qualified minority or female candidate even though the offer may be rejected or retention strategies such as mentoring or training and development opportunities for female and minority employees.
If there is a goal, and no qualified minority or female applicant is available, can I hire someone else?
The affirmative action program does not require the university to hire a person who lacks qualifications to perform the job successfully, or to hire a less qualified person in preference to a more qualified one.
If there is no goal, am I free to hire anyone I want? We are still required to provide equal opportunity for all openings. That is, we must consider for employment qualified applicants and make selections from that group of applicants. As an equal opportunity employer, UMass Dartmouth welcomes qualified applicants for hire or for promotion. Decisions regarding hiring, promotion, training, compensation, discharge, and other employment-related matters must be made on the basis of qualifications and be nondiscriminatory with regard to race, color, gender, national origin, age, religion, disability, Vietnam era veteran, or other protected veteran status.
Who can I contact with questions in regard to affirmative action goals or programs?
The Office of Diversity, Equity & Inclusion 508-999-8008 or email: firstname.lastname@example.org.
What Are the Federal Laws Prohibiting Job Discrimination?
- Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
- Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
- Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
- Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
- Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
- Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
- Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
What Discriminatory Practices Are Prohibited by These Laws?
Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability leave; or
- other terms and conditions of employment.
Discriminatory practices under these laws also include:
- harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
- retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
- employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and
- denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
What Other Practices Are Discriminatory Under These Laws?
Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.
National Origin Discrimination
- It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
- A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.
The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA; verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.
- An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.
Title VII's broad prohibitions against sex discrimination specifically cover:
- Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
- Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
Age Discrimination in Employment Act
The ADEA's broad ban against age discrimination also specifically prohibits:
- statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
- discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
- denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Equal Pay Act
The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
- Employers may not reduce wages of either sex to equalize pay between men and women.
- A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
- A violation may also occur where a labor union causes the employer to violate the law.
Titles I and V of the Americans with Disabilities Act, as amended
What is the ADA?
The Americans with Disabilities Act is a federal civil rights law enacted on July 26, 1990. It is intended to protect qualified persons with disabilities from discrimination in employment, government services and programs, transportation, public accommodations, and telecommunications. The ADA supplements and complements other federal and state laws which protect persons with disabilities.
Who is covered under the ADA?
A "disability" is defined as a physical or mental impairment that substantially limits one or more major life activities. A person is considered disabled if the person has such a physical or mental impairment, has a record of such an impairment, or is regarded as having such an impairment. "Disability" covers a wide range of conditions and includes mobility, vision, hearing, or speech impairments, learning disabilities, chronic health conditions, emotional illnesses, AIDS, HIV positive, and a history of alcoholism or prior substance abuse.
The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:
Individual with a Disability
An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability. An entity subject to the ADA regards someone as having a disability when it takes an action prohibited by the ADA based on an actual or perceived impairment, except if the impairment is both transitory (lasting or expected to last six months or less) and minor. Major life activities are basic activities that most people in the general population can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, thinking, and eating. Major life activities also include the operation of a major bodily function, such as functions of the immune system normal cell growth, brain, neurological, and endocrine functions.
An individual with a disability is "qualified" if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids. A person who only meets the "regarded as" definition of disability is not entitled to receive a reasonable accommodation.
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.
Prohibited Inquiries and Examinations
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.
Drug and Alcohol Use
Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
The Civil Rights Act of 1991
The Civil Rights Act of 1991 made major changes in the federal laws against employment discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys' fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.
Title II of the Genetic Information Nondiscrimination Act of 2008
GINA prohibits discrimination against applicants, employees, and former employees on the basis of genetic information. This includes a prohibition on the use of genetic information in all employment decisions; restrictions on the ability of employers and other covered entities to request or to acquire genetic information, with limited exceptions; and a requirement to maintain the confidentiality of any genetic information acquired, with limited exceptions.
Which Employers and Other Entities Are Covered by These Laws?
Title VII, the ADA, and GINA cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.
The EPA covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.
Title VII, the ADEA, GINA, and the EPA also cover the federal government. In addition, the federal government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, which incorporate the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEO office of the federal agency where the alleged discrimination occurred.
The CSRA (not enforced by EEOC) covers most federal agency employees except employees of a government corporation, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and as determined by the President, any executive agency or unit thereof, the principal function of which is the conduct of foreign intelligence or counterintelligence activities, or the General Accounting Office.