Faragher Ellerth Defense

RTH And FARAGHER: Applying The Supreme Court’s “Delphic Pronouncement” On Employers’ Vicarious Liability For Sexual Harassment

This article was edited and reviewed by FindLaw Attorney Writers | Last updated September 28, 2017

The U.S. Supreme Court has issued two decisions, Burlington Industries, Inc v Ellerth and Faragher v City of Boca Raton, which provided additional guidance on an employer’s liability for sexual harassment perpetrated by a supervisor with authority over the plaintiff-employee. In dissent, Justices Thomas and Scalia criticized the majority for its “Delphic pronouncements” that provided “shockingly little guidance about how employers can actually avoid vicarious liability.”

A review of several post-Ellerth and Faragher cases reveals that the lower courts have taken differing approaches in applying the Ellerth and Faragher standards, giving some credence to the dissenters’ concerns.

Vicarious Liability and the Court’s Guidance on the Affirmative Defense

Essentially, in Ellerth and Faragher, the court ruled that when a supervisor’s sexual harassment culminates in a tangible employment action, such as dismissal or an undesirable reassignment, the employer is automatically liable. However, when no tangible employment action is taken, the employer may avail itself of an affirmative defense.

The defense has two necessary elements:

1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
2. that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The First Element: The Employer’s Reasonable Care

An employer must initially establish that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Today, most employers have established and distributed policies prohibiting sexual harassment. Whether an employer can satisfy its burden that it exercised reasonable care by virtue of such a policy has varied from case to case.

In some cases the courts have held, as a matter of law, that the employer met the first element of the affirmative defense by distributing a policy of which plaintiff was aware. In Fierro v Saks Fifth Avenue, (13 F.Supp.2d 481 (1998)), the court recognized that “the employer’s promulgation of ‘an anti-harassment policy with complaint procedure’ is an important, if not dispositive, consideration.”

In contrast, in Lancaster v Sheffler Enterprises (19 F.Supp.2d 1000 (W.D. Mo. 1998)), the court said that having a policy and forcing all new employees to sign the policy is not sufficient to establish reasonable care. Rather, the employer must demonstrate reasonable steps to enforce the policy, and prevent and correct violations of it.

The Second Element: The Employee’s Unreasonableness

The second part of the affirmative defense requires that an employer show “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

In Fierro, the court categorized this second element as “the crucial inquiry” and ruled that the employee’s failure to report alleged harassment because of “conclusionary assertions of fear of repercussions” will not defeat the affirmative defense.

Establishing the unreasonableness of the employee’s conduct is, of course, easiest when the employee has not complained about the harassment at all. Thus far, where the employer has disseminated an anti-harassment policy and the complainant knows of it, most courts have had little sympathy for employees who failed to use the policies to make their employers aware of the harassment.

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A review of the cases suggests that an employee will have to do more than merely allege she had a reasonable explanation not complaining about harassment. She will have to articulate specific facts that support the alleged reason.

Prompt Remedial Measures

Before Ellerth and Faragher , an employer could avoid liability in many cases “if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.”

The Supreme Court in Ellerth and Faragher did not address this method for avoiding liability and the effect that Ellerth and Faragher were meant to have on it. The courts so far have varied in the significance they have placed on an employer’s prompt remedial action.

In Gunnell v Utah Valley State College, the district court dismissed an employee’s claim because the employer stopped the harassment after the employee complained. The Tenth Circuit reversed and sent the case back for further proceedings in light of Ellerth and Faragher, stating, “an employer whose supervisory personnel has harassed subordinates will be liable for the harassment that occurred even though the employer ultimately stopped further harassment.”

In contrast, in Indest v Freeman Decorating, Inc, the Fifth Circuit ruled that the employer was not vicariously liable because it took prompt remedial measures in response to the employee’s complaint, characterized by the court as “presenting only an incipient hostile environment,” which the court ruled was not a tangible adverse employment action.

The court concluded that “[i]mposing vicarious liability on an employer for a supervisor’s ‘hostile environment’ actions despite its swift and appropriate remedial response to the victim’s complaint would undermine . . . Title VII’s deterrent policy.”

Recommendations

At a minimum, an employer must establish and distribute an anti-harassment policy, with avenues of relief, to its employees. The employer should also have employees sign a receipt for the policy to prevent an employee from subsequently claiming he or she never received the policy.

Simply distributing the policy is probably not enough and the employer should provide supervisors and managers with sexual harassment training or, at the very least, train them regarding the employer’s policy.

If there is a complaint, an employer should investigate and take prompt remedial action to end the alleged harassment. At best, such action may be a defense to a claim and at worst, it may limit the employer’s liability.

Drafting a Sexual Harassment Policy

In light of Ellerth and Faragher and the lower courts’ interpretations of the Supreme Court’s rulings, an employer’s anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

• A clear explanation of prohibited conduct;
• Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
• A clearly described complaint process that provides accessible avenues of complaint;
• Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
• A complaint process that provides a prompt, thorough and impartial investigation; and
• Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Workers Comp Federal

If you’re a public employee working for the government, you’re probably subject to a separate set of workers’ compensation regulations. Federal employees are governed by federal law, state or local employees are subject to either the same state regulations as private workers or a special state statute, and some occupations like railroad workers and seamen have their own separate regulations entirely.

Federal Employees

Federal employees have different programs for federal workers’ compensation benefits. The Federal Employee’s Compensation Act (FECA) allows for the recovery of benefits when a federal employee is either disabled or killed as a result of an injury or disease “sustained while in the performance of duty.” FECA is available to federal employees regardless of the length of time on the job or the type of position held. Benefits include both medical expenses and compensation for wage loss. Vocational rehabilitation services are also offered to partially disabled employees. All federal benefits are managed through the Office of Workers’ Compensation Programs(OWCP) and paid out of the Employees’ Compensation Fund.

Special Occupations

Special types of employees may bring claims for federal workers’ compensation benefits under several federal acts. For example, the Federal Employer’s Liability Act provides recovery for injuries sustained by employees engaged in interstate transportation, such as railroad workers. The Jones Act provides for seamen, and the Longshore and Harbor Workers’ Compensation Act provides similar benefits to longshoremen and others who are engaged in maritime activities on navigable waters. Other statutes that play a role in the compensation of certain employees include: The Outer Continental Shelf Lands Act, the Death on the High Seas Act, and the Defense Base Act (for employees working on defense bases or public works projects outside the U.S.).

State and Local Employees

If you’re a state or local government employee, your state workers’ compensation statutes determine whether you are covered under the state’s program or another provision. The easiest way to learn the details of your coverage is to look for the mandatory workers’ compensation poster at your workplace. Most states require these to be posted in an employee common area. Here are samples from California and Texas. The poster details your coverage and provides contact information for questions and filing a claim. If you’re unable to locate the poster, contact your employer.

If you’re employed by your state, contact your state’s human resources or employee management department. In California, for example, you would contact the California Department of Human Resources. In Florida, the Department of Management Services regulates state employee benefits. If your employer is the local county or city government, the same principle applies – contact the human resources department. Alternatively, you may contact the legal department (see New York City) or if you’re a member of a labor union, your union representative.

Most state statutes prohibit payment of workers’ compensation benefits to “officials” of the state. As a general rule, if an individual exercises some portion of the state’s sovereign power, he or she will be considered an official and therefore ineligible to collect state workers’ compensation benefits. If you’re a police officer, firefighter, or uniformed sanitation worker many states have separate, specific provisions within their statutes to clarify which workers’ compensation benefits, rules, and requirements apply.

Legal Help for Public Employees

If you are a public employee who has been hurt on the job, you are facing not only the hard work of healing from your injuries, but figuring out what you need to do next to make your claim. What laws apply to you? Can your union help? A local workers’ comp attorney can review your case free, explain the law to you, and help you decide what to do next.

NO FEAR ACT

Questions and Answers: No FEAR Act

Q: What is the No FEAR Act?

A: The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) became effective on October 1, 2003. The Act imposes additional duties upon Federal agency employers intended to reinvigorate their longstanding obligation to provide a work environment free of discrimination and retaliation.

Q: What are the new duties that the No FEAR Act places on a Federal agency?

A: The additional obligations contained in the No FEAR Act can be broken down into five categories.

• A Federal agency must reimburse the Judgment Fund for payments made to employees, former employees, or applicants for Federal employment because of actual or alleged violations of Federal employment discrimination laws, Federal whistleblower protection laws, and retaliation claims arising from the assertion of rights under those laws.
• An agency must provide annual notice to its employees, former employees, and applicants for Federal employment concerning the rights and remedies applicable to them under the employment discrimination and whistleblower protection laws.
• At least every two years, an agency must provide training to its employees, including managers, regarding the rights and remedies available under the employment discrimination and whistleblower protection laws.
• An agency must submit to Congress, EEOC, the Department of Justice, and OPM, an annual report setting forth information about the agency’s efforts to improve compliance with the employment discrimination and whistleblower protection laws and detailing the status of complaints brought against the agency under these laws.
• An agency must post quarterly on its public Web site summary statistical data pertaining to EEO complaints filed with the agency.

Q: How are Federal employees, applicants and former employees notified of their rights and remedies?

A: Current employees should have received the required notification, either in paper form (e.g., memorandum or poster) or electronic form (e.g., e-mail, internal agency electronic site). Each agency’s initial notice, which was due no later than November 17, 2006, should have been published in the Federal Register. If an agency has a public Web site, the notice must appear there as well. The Federal Register and public Web site notices fulfill the agency’s notice obligation towards former employees and applicants. New employees must receive the notice within 90 days of entering on duty.

Q: What information must the notice contain?

A: At a minimum, the notice must contain the language set forth in OPM’s implementing regulations. OPM’s notice, which contains the minimum information necessary, can be accessed at http://www.opm.gov/about_opm/nofear/notice.asp.

Q: How often must employees receive No FEAR training?

A: Current employees should have received the applicable training on or before December 17, 2006. Thereafter, an agency must conduct training no less than every two years. New employees should receive the applicable training as part of the agency’s orientation program. If an agency does not have an orientation program, new employees must receive the applicable training within 90 days of their appointment.

Q: When must the annual report be submitted and what types of information must it contain?

A: Within 180 days of the end of each fiscal year, an agency must submit its annual report to Congress, EEOC, DOJ and OPM.

Among the items that must be included in the report are the following: the number, status, and disposition of pending or resolved Federal court cases against the agency arising under the applicable employment discrimination and whistleblower protection laws; the amount of money the agency was required to reimburse the Judgment Fund; the number of individuals the agency disciplined and the types of discipline administered for violations of the employment discrimination and whistleblower protection laws; a description of the agency’s policy for taking disciplinary action against employees for conduct inconsistent with employment discrimination and whistleblower protection laws; all the statistical data the agency is required to post on its public Web site; and, an analysis of the preceding information and any action the agency has or will take to improve its complaint and civil rights programs with the goal of eliminating employment discrimination and retaliation.

Q: What kind of information has to be posted on an agency’s public web site?

A: Information to be posted includes, among other things: the number of complaints filed; the number of persons filing those complaints; the number of persons filing multiple complaints; the bases and issues alleged in the complaints; the average length of time in takes an agency to complete certain stages of the complaint process; the number of final agency actions in which discrimination is found, broken down by issue, basis, and whether a hearing was held; the number of pending complaints that were filed in previous fiscal years, including the number of persons who filed those complaints; and, the number of complaints in which an investigation was not completed in a timely manner. An agency is to post current fiscal year data, updated quarterly, as well as data for the past five fiscal years.

Q: What are EEOC’s responsibilities under the No FEAR Act?

A: Title III of the No FEAR Act authorizes EEOC to prescribe the time, form and manner in which a federal agency shall post on its public Web site summary statistical data pertaining to EEO complaints filed with the agency. EEOC has done so by regulation. EEOC’s No FEAR regulation can be found at http://edocket.access.gpo.gov/2006/E6-12432.htm.

Title III further requires EEOC to post on its public Web site summary statistical data relating to (1) hearings requested before an EEOC administrative judge and (2) appeals filed with EEOC from final agency actions. The information that must be posted about hearings and appeals parallels the information agencies must post about complaints (e.g., number of hearings requested and appeals filed, the bases and issues alleged in each, the number of findings of discrimination, and length of time to process hearings and appeals). This summary data can be found at http://www.eeoc.gov/eeoc/statistics/nofear/index.cfm.

Q: What are OPM’s responsibilities under the No FEAR Act?

A: Title II of the No FEAR Act authorizes OPM, through a delegation of authority from the President, to issue rules regarding an agency’s obligation to: 1) reimburse the Judgment Fund for payments made to employees, former employees, and applicants, because of actual or alleged violations of Federal antidiscrimination laws, whistleblower protection laws, and retaliation claims; 2) notify and train employees, former employees, and applicants, of their rights under antidiscrimination and whistleblower protection laws; and 3) report annually on certain topics regarding antidiscrimination and whistleblower protection laws, including disciplinary actions taken for conduct that is inconsistent with these laws. OPM’s No FEAR regulations can be found at: http://edocket.access.gpo.gov/2006/06-4319.htm; http://edocket.access.gpo.gov/2006/E6-11541.htm; and, http://edocket.access.gpo.gov/2006/E6-22242.htm.

Finally, OPM must conduct a study of best practices in the executive branch for taking disciplinary action against employees for conduct that is inconsistent with employment discrimination and whistleblower protection laws. OPM will then issue advisory guidelines incorporating these best practices. Within 30 working days of their issuance, each agency must submit to Congress, EEOC, DOJ and OPM a statement indicating whether it has adopted the OPM guidelines, and if not, its reasons for not adopting them.

Compensatory EEO Damages in Federal Employment

Compensatory Damages in the Federal Sector: An Overview

By: Nicole M. Thompson

A Brief History

Title VII of the Civil Rights Act of 1964 ¹ is a powerful tool used to eliminate discrimination in the workplace. Under the Act, courts have the power to issue an injunction against an employer once the employer is found to have engaged in unlawful employment practices. In addition, the statute provides that a court may order “such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay, or any other equitable relief as the court deems appropriate.”² The protections of Title VII were extended to employees of the federal government in 1972, and the Commission was granted the authority to enforce the prohibition against discrimination in the government through “appropriate remedies.” ³

In 1991, Congress found that additional legislation was required to prevent unlawful harassment and intentional discrimination in the workplace. The Civil Rights Act of 1991 added a new section to the Civil Rights statutes that dramatically changed the damages available in cases of intentional discrimination. Under § 1981A(a)(1), a complaining party pursuing a claim under Title VII, the Americans with Disabilities Act or the Rehabilitation Act could now recover compensatory damages against a respondent that engaged in intentional discrimination.⁴ Since damages were made available in addition to any relief authorized under § 706(g) of Title VII, the remedies of back pay, front pay and other previously available remedies were not affected. Subsequently, in West v. Gibson,⁵ the Supreme that the Commission had the legal authority to require federal agencies to pay compensatory damages when they are in found in violation of Title VII.

Types of Damages

Compensatory damages, which are intended to remunerate an individual for harm or injury, consist of two types: pecuniary and non-pecuniary. Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer’s unlawful conduct. Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint. Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses. Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.⁶

Nonpecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Due to their intangible quality, nonpecuniary losses are more difficult to prove than their pecuniary counterparts. A finding of discrimination does not carry a presumption of emotional harm. There must be proof of the existence, nature and severity of the emotional harm. Examples of how the emotional harm may manifest include sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. The harm may also manifest itself physically, for example the development of ulcers, hair loss and headaches.⁷ Nonpecuniary damages may also be awarded if an individual experiences considerable inconvenience, damage to professional reputation and loss of future earning capacity. The statute specifically limits awards of future pecuniary damages and non-pecuniary damages to $300,000 for employers of 501 or more employees, and provides that punitive damages are not available against the federal government or a government agency.

Proof of Damages

The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury and proof that the unlawful conduct caused the harm or injury.⁸ The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency. The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent’s illegal conduct and the complainant’s injury.⁹

While pecuniary damages can be proven with such evidence as bills and receipts, evidence required to prove non-pecuniary damages (e.g., emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy,¹⁰ the Commission described the types of evidence that would support a claim of emotional harm, including a statement from the complainant describing her emotional distress, and statements from witnesses, on and off the job, describing the stress. To properly explain the emotional distress, the Commission reasoned that the statement should include specific information regarding the physical or behavioral manifestations of the distress, duration of the stress and examples of the impact of the distress while at work and while not at work. The Commission also concluded that other evidence linking the distress to the unlawful discrimination was necessary. The Commission has concluded, however, that evidence from a health care provider is a not a mandatory prerequisite for recovery of compensatory damages for emotional distress.¹¹

Complainants with a pre-existing condition are not foreclosed from pursuing a claim for emotional harm. If the complainant had a pre-existing emotional condition and his or her mental health deteriorates as a result of the discriminatory conduct, the additional harm may be attributed to the employer.¹² On the other hand, where the complainant’s emotional harm is due in part to personal difficulties that were not caused or exacerbated by the discriminatory conduct, the employer is liable only for the harm caused by the discrimination.¹³

The Commission’s Enforcement Guidance acknowledges that damage awards for emotional harm differ greatly, and there are no clear rules governing the amounts to be awarded. When determining these types of awards, however, it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. Though different methods of computing damage awards may be appropriate in certain cases, generally, the method for computing nonpecuniary damages should be based on consideration of the duration of the harm and the nature and severity of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm.¹⁴ The Commission also strives to ensure that awards are not monstrously excessive standing alone, nor are they the result of passion or prejudice.¹⁵

Overview of Nonpecuniary Damage Awards of $100,000 or More

In one of the Commission’s highest nonpecuniary awards, Estate of Nason v. United States Postal Service,¹⁶ the complainant committed suicide, leaving a suicide note that blamed the agency for her stress. The Administrative Judge found that the agency had discriminated against the complainant on the basis of disability and in reprisal for prior EEO activity, and awarded $150,000 in nonpecuniary compensatory damages. The evidence in the record included testimony from the complainant’s husband that her work situation caused a loss in her ability to interact with him and their children, and caused feelings of hopelessness and extreme depression. The complainant’s mother testified that the complainant was “extremely depressed and upset on a constant basis.” The Commission recognized that the complainant’s estate did not offer any medical evidence beyond a report issued by the physician who conducted the complainant’s fitness for duty exam. Nevertheless, the Commission concluded that the record disclosed that the agency’s conduct produced far-reaching symptoms of emotional distress, which strained relationships and contributed to the complainant’s decision to end her life.

When the complainant in Franklin v. United States Postal Service¹⁷ was denied a request for light duty due to his degenerative knee condition and also denied reassignment several months later, he filed an EEO complaint. The Administrative Judge found that the agency had discriminated against complainant on the basis of disability, and awarded $150,000 in non-pecuniary compensatory damages. The Commission noted that although the complainant offered no medical evidence of his depression, the record did disclose a causal link between the agency’s conduct and the complainant’s emotional distress, which affected his relationships and his personality, and decreased his enjoyment of life. The complainant suffered humiliation at not being able to find a comparable job and experienced such shame and despair that interaction with his family became strained.

In Ellis v. Department of Defense,¹⁸ the complainant alleged that she was subjected to a hostile work environment created by her supervisor. The complainant retired approximately one year after her supervisor left the facility. The agency found discrimination on the basis of gender and disability, citing numerous incidents of harassment, including criticism of her work, ridicule of her physical and emotional condition, statements to the complainant that she should kill herself and ostracism in the workplace. The complainant indicated that her existing medical condition (fibromyalgia) was exacerbated by the supervisor’s conduct. The complainant submitted a statement that detailed the changes in her life as a result of the discrimination, which included sleeping problems, destruction of her self-image, financial problems, mental anguish and loss of health. The complainant also revealed that a doctor had diagnosed her with Post Traumatic Stress Disorder (PTSD). Another physician also stated that the complainant’s movement was noticeably restricted, she had grief issues surrounding loss of her health, she had difficulty concentrating and she had feelings of helplessness. The Commission awarded $125,000 in non-pecuniary damages. The Commission took note of complainant’s pre-existing medical condition, but found that the nature, severity, and duration of complainant’s suffering justified the award.

In Hendley v. Department of Justice,¹⁹ the complainant alleged discrimination on the basis of sex and retaliation when the agency disciplined her for inappropriate behavior after she raised claims of harassment. The agency argued that it was only responsible for aggravation of the pre-existing condition and that an award for non-pecuniary harm related to complainant’s emotional distress should be reduced by 25 percent due to the presence of the pre-existing condition. The Commission rejected this argument, and concluded that the complainant’s treatment was due in large part to the agency’s discrimination. When the complainant became aware of the agency’s decision to discipline her for the incidents of sexual harassment that she had reported, complainant recounted having an initially severe reaction. Prior to the agency’s decision to discipline, the complainant was receiving treatment for the sexual assault, but had improved to the point that she was ready to resume work. Complainant stated that she became distraught, anxious, depressed and filled with despair. In addition, the complainant became fearful, paranoid, anti-social and suffered from sleep problems. The complainant’s treating psychiatrist confirmed that several of these symptoms were related to inappropriate sexual advances made towards her at work, but the symptoms reoccurred as a result of the agency’s actions. The psychiatrist opined that complainant would require treatment for the rest of her life. The complainant also submitted a statement from a psychotherapist who stated that complainant’s need for continued therapy was due partly to the agency’s actions. In granting a non-pecuniary damages award of $125,000, the Commission took into account that seven years after the agency’s actions, the complainant continued to receive therapy and take medication and was expected to need an additional two years of treatment. The Commission also considered the fact that the complainant’s career pursuits had been reduced.

The complainant in Hughes v. Department of Veteran Affairs,²⁰ alleged that his supervisor sexually harassed him for a period of 15 years, including inappropriately touching and fondling complainant, and threatening and intimidating him in order to prevent him from reporting the harassing behavior.²¹ The Commission awarded complainant $125,000 in compensatory damages. Evidence in the record consisted of medical documentation that supported the conclusion that there had been emotional harm. The complainant suffered from PTSD, extreme stress, nightmares and depression. The complainant’s doctor listed numerous medications that were prescribed for the physical effects of the harassment. The Commission also found credible the complainant’s assertion that he would require treatment for the rest of his life. In granting this award, the Commission considered the observations of the complainant’s doctors, the evidence of harm sustained, the elapsed and expected period of the harm, the complainant’s diagnosis of PTSD, the sexual dysfunction that the complainant experienced, the failure of his marriage and the continuing social phobias.

In Holland v. Social Security Administration,²² the complainant alleged discrimination on the basis of mental disability (Depression and Obsessive Compulsive Disorder) and reprisal for prior EEO activity. Nearly ten years prior to working for the agency, complainant began receiving treatment for his psychiatric disorders. The complainant, who answered telephones and inputted data into the computers, requested time to perform non-telephone duties for several hours each day as a reasonable accommodation. The agency rejected the complainant’s request as well as the complainant’s subsequent request for use of three hours of leave without pay per day. Upon denial of both requests, the complainant applied for and was granted disability retirement. Relying on medical evidence submitted by the complainant, the Administrative Judge concluded that the complainant experienced a “severe emotional injury” due to his constructive discharge. The evidence consisted of the complainant’s statement and the statements of the complainant’s treating psychiatrist, who confirmed that the complainant experienced feelings of worthlessness and low self-image in the five years following the discrimination. In addition, the Administrative Judge concluded that the granting of $100,000 in nonpecuniary damages was justified by the severity of the harm, which included exacerbation of the complainant’s pre-existing mental disorder, and feelings of rejection, shame and anger, and the duration of the harm, that is on-going for at least five years. The Commission noted that the extent of the agency’s liability was restricted to the additional harm caused by the agency’s illegal conduct. Nevertheless, the emotional symptoms described by the complainant and confirmed by both of the complainant’s treating doctors justified the award.

The complainant alleged discrimination on the basis of reprisal for prior Title VII EEO activity in Leatherman v. Department of Navy.²³ Incidents of harassment included a letter of reprimand, humiliation during a staff meeting and criticism concerning a job task. In its decision, the Commission noted that in cases where the Commission has awarded non-pecuniary damages that exceed $40,000, the evidence demonstrated that the “emotional or psychological injuries that resulted from the agency’s conduct either had permanent or substantially long term effects, or were so catastrophic that no inquiry into long-term effects was necessary.” The complainant was hospitalized on two occasions, and took various anti-depressants and psycho-tropic medications for over one year. She stated that she was unable to sleep, experienced suicidal thoughts and was anxious. In addition, the complainant’s psychiatrist diagnosed the complainant’s condition as severe major depression. Noting the serious nature and the duration of the complainant’s suffering, the Commission awarded $100,000 in nonpecuniary damages.

---

Footnotes

¹42 U.S.C.§ 2000e.

²Id. § 2000e-5(g)9(1)(1991).

³Id. § 2000 e-16(b)(1).

⁴Section 102 of the Civil Rights Act of 1991 was codified as 42 U.S.C. 1981 and hereinafter will be referred to as § 1981A.

⁵527 U.S. 212 (1999).

⁶EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14, 1992) (hereinafter referred to as Enforcement Guidance).

⁷Id.

⁸Id.

⁹Id.

¹⁰EEOC Appeal No. 01922369 (January 5, 1993).

¹¹Economou v. Department of Army, EEOC Appeal No. 01983435 (August 5, 1999).

¹²Enforcement Guidance, supra n.6.

¹³Id.

¹⁴Id.

¹⁵Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir.).

¹⁶EEOC Appeal No. 01A01563 (June 21, 2001).

¹⁷EEOC Appeal Nos. 07A00025 and 01A03882 (January 19, 2001).

¹⁸EEOC Appeal No. 01A13314 (April 29, 2003).

¹⁹EEOC Appeal No. 01A20977 (May 15, 2003), request for reconsideration denied, EEOC Request No. 05A30962.

²⁰EEOC Appeal No. 07A10095 (August 30, 2002).

²¹Though the harassment spanned a period of 15 years, the Commission assessment was based on the period of November 21, 1991 to 1995 since compensatory damages only became available to complainants after the effective date of the CRA of 1991, November 21, 1991.

²²EEOC Appeal No. 01A0372 (October 2, 2003).

²³EEOC Appeal No. 01A12222 (December 14, 2001).

Illegal Pre-Employment Screening Practices

Requesting Photos as a Pre-Employment Screening Practice? Don’t Do It.

There are a number of local, state and federal laws which prohibit discrimination in employment on a variety of bases. When an employer takes certain types of actions: hiring, firing or  promoting employees, it must take care to do so in such a way that none of the applicable anti-employment laws are violated. There are certain employment practices that are considered suspect and are best avoided. Requiring that applicants submit photographs with their applications for employment is one such suspect practice. It’s best for an employer to avoid this practice, let’s examine the reasons why.

When Does a Virginia Employer Become Liable for Employment Discrimination and on What Basis?

Under the Virginia Code, and Prince William County’s Human Rights Ordinance, an employer with five (5) or more employees can be liable for discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, and/or disability.

Under Federal Law, employers with fifteen (15) or more employers are liable under Title VII of the Civil Rights Act of 1964, (which covers, race, color, national origin, gender and religion.)

Also, employers with twenty (20) or more employees, are liable under the Age Discrimination in Employment Act of the Civil Rights Act of 1964, (which covers any individual over age 40.)

And finally, employers with fifteen (15) or more employees, are liable under the Americans with Disabilities, (which covers any individual with a qualified disability.)

Question: Is Requiring Photos in Conjunction with Employment Applications Discrimination?

Answer: While not necessarily discriminatory on it’s face,  in certain circumstances, requiring a photo with an application can be a discriminatory pre-employment screening practices, probative of discrimination.

Discriminatory  Pre- Employment Screening  Practices

Requiring photographs with applications for employment  is a problematic  pre-screening practice because it allows an employer to identify an individual’s race, color, gender, and possibly age and/ or disability.  The burden will rest with the employer to demonstrate that this pre-screening activity is not discriminatory.  It may be difficult to an employer to meet that burden. This will be especially difficult to prove if the employer has consistently employed individuals of a certain, race, gender, age, and especially if the employer has specifically requested a certain, race, gender or age. Requesting a certain “type” is also problematic, as these statements are often seen as code words for a certain race, gender or age.

Furthermore, the kind of documentation that can occur in conjunction with this sort of pre-screening, can be (and often does provide) clear evidence of systematic discrimination and the damages that can be assessed for such practices can be substantial.

With discrimination, each case rest upon the facts of the particular incident in question, however, in order to avoid the hassle of a lawsuit and substantial legal liabilities,  an employer should avoid these dubious pre-screening practices.  Agencies that are involved with selecting temporary employees, or placing employees can also be liable for engaging in these sorts of pre-screening practices; and can pass the liability on to their client/employer.

Bottomline: An employer needs to avoid these types of pre-screening employment practices. They are red-flag activities which, more often than not, lead to allegations of employment discrimination and/or, employment discrimination investigations and lawsuits.

Title VII of the Civil Rights Act of 1964 – Employment

Title VII of the Civil Rights Act of 1964

EDITOR’S NOTE: The following is the text of Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act of 1991 (Pub. L. 102-166) (CRA) and the Lily Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2) amend several sections of Title VII. In addition, section 102 of the CRA (which is printed elsewhere in this publication) amends the Revised Statutes by adding a new section following section 1977 (42 U.S.C. 1981), to provide for the recovery of compensatory and punitive damages in cases of intentional violations of Title VII, the Americans with Disabilities Act of 1990, and section 501 of the Rehabilitation Act of 1973. Cross references to Title VII as enacted appear in italics following each section heading. Editor’s notes also appear in italics.

An Act

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Civil Rights Act of 1964”.

* * *

DEFINITIONS

SEC. 2000e. [Section 701]

For the purposes of this subchapter-

(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-­stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy ], or receivers.

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5 [United States Code]), or

(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26 [the Internal Revenue Code of 1986], except that during the first year after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], persons having fewer than twenty-­five employees (and their agents) shall not be considered employers.

(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(d) The term “labor organization” means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-­five or more during the first year after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], or (B) fifteen or more thereafter, and such labor organization-

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.];

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.

(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-­Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.], and further includes any governmental industry, business, or activity.

(i) The term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].

(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)]shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

(l) The term “complaining party” means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter.

(m) The term “demonstrates” means meets the burdens of production and persuasion.

(n) The term “respondent” means an employer, employment agency, labor organization, joint labor ­management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e-16 of this title.

APPLICABILITY TO FOREIGN AND RELIGIOUS EMPLOYMENT

SEC. 2000e-1. [Section 702]

(a) Inapplicability of subchapter to certain aliens and employees of religious entities

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(b) Compliance with statute as violative of foreign law

It shall not be unlawful under section 2000e-2 or 2000e-3 of this title [section 703 or 704] for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labor­-management committee controlling apprenticeship or other training or retraining (including on-­the-­job training programs) to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located.

(c) Control of corporation incorporated in foreign country

(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title[section 703 or 704] engaged in by such corporation shall be presumed to be engaged in by such employer.

(2) Sections 2000e-2 and 2000e-3 of this title [sections 703 and 704] shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer.

(3) For purposes of this subsection, the determination of whether an employer controls a corporation shall be based on-

(A) the interrelation of operations;

(B) the common management;

(C) the centralized control of labor relations; and

(D) the common ownership or financial control, of the employer and the corporation.

UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000e-2. [Section 703]

(a) Employer practices

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

(b) Employment agency practices

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) Labor organization practices

It shall be an unlawful employment practice for a labor organization-

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) Training programs

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on­-the-­job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion

Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor­ management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

(f) Members of Communist Party or Communist-action or Communist-front organizations

As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor­ management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist­-action or Communist-­front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

(g) National security

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [section 6(d) of the Labor Standards Act of 1938, as amended].

(i) Businesses or enterprises extending preferential treatment to Indians

Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-­management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

(k) Burden of proof in disparate impact cases

(1) (A) An unlawful employment practice based on disparate impact is established under this subchapter only if-

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

(l) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

(n) Resolution of challenges to employment practices implementing litigated or consent judgments or orders

(1) (A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).

(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws-

(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had-

(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and

(II) a reasonable opportunity to present objections to such judgment or order; or

(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.

(2) Nothing in this subsection shall be construed to-

(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;

(B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;

(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

(D) authorize or permit the denial to any person of the due process of law required by the Constitution.

(3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of Title 28 [United States Code].

OTHER UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000e-3. [Section 704]

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

(b) Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception

It shall be an unlawful employment practice for an employer, labor organization, employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on­-the-­job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint labor­-management committee, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

SEC. 2000e-4. [Section 705]

(a) Creation; composition; political representation; appointment; term; vacancies; Chairman and Vice Chairman; duties of Chairman; appointment of personnel; compensation of personnel

There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party. Members of the Commission shall be appointed by the President by and with the advice and consent of the Senate for a term of five years. Any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed, and all members of the Commission shall continue to serve until their successors are appointed and qualified, except that no such member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and, except as provided in subsection (b) of this section, shall appoint, in accordance with the provisions of Title 5 [United States Code] governing appointments in the competitive service, such officers, agents, attorneys, administrative law judges [originally, hearing examiners], and employees as he deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of Title 5 [United States Code], relating to classification and General Schedule pay rates: Provided, That assignment, removal, and compensation of administrative law judges [originally, hearing examiners] shall be in accordance with sections 3105, 3344, 5372, and 7521 of Title 5 [United States Code].

(b) General Counsel; appointment; term; duties; representation by attorneys and Attorney General

(1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 2000e-5 and 2000e-6 of this title [sections 706 and 707]. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the Commission on the appointment and supervision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified.

(2) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission is a party in the Supreme Court pursuant to this subchapter.

(c) Exercise of powers during vacancy; quorum

A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum.

(d) Seal; judicial notice

The Commission shall have an official seal which shall be judicially noticed.

(e) Reports to Congress and the President

The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken [originally, the names, salaries, and duties of all individuals in its employ] and the moneys it has disbursed. It shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable.

(f) Principal and other offices

The principal office of the Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this subchapter.

(g) Powers of Commission

The Commission shall have power-

(1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals;

(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;

(3) to furnish to persons subject to this subchapter such technical assistance as they may request to further their compliance with this subchapter or an order issued thereunder;

(4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this subchapter, to assist in such effectuation by conciliation or such other remedial action as is provided by this subchapter;

(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this subchapter and to make the results of such studies available to the public;

(6) to intervene in a civil action brought under section 2000e-5 of this title [section 706] by an aggrieved party against a respondent other than a government, governmental agency or political subdivision.

(h) Cooperation with other departments and agencies in performance of educational or promotional activities; outreach activities

(1) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities.

(2) In exercising its powers under this subchapter, the Commission shall carry out educational and outreach activities (including dissemination of information in languages other than English) targeted to-

(A) individuals who historically have been victims of employment discrimination and have not been equitably served by the Commission; and

(B) individuals on whose behalf the Commission has authority to enforce any other law prohibiting employment discrimination, concerning rights and obligations under this subchapter or such law, as the case may be.

(i) Personnel subject to political activity restrictions

All officers, agents, attorneys, and employees of the Commission shall be subject to the provisions of section 7324 of Title 5 [originally, section 9 of the Act of August 2, 1939, as amended (the Hatch Act)], notwithstanding any exemption contained in such section.

(j) Technical Assistance Training Institute

(1) The Commission shall establish a Technical Assistance Training Institute, through which the Commission shall provide technical assistance and training regarding the laws and regulations enforced by the Commission.

(2) An employer or other entity covered under this subchapter shall not be excused from compliance with the requirements of this subchapter because of any failure to receive technical assistance under this subsection.

(3) There are authorized to be appropriated to carry out this subsection such sums as may be necessary for fiscal year 1992.

(k) EEOC Education, Technical Assistance, and Training Revolving Fund

(1) There is hereby established in the Treasury of the United States a revolving fund to be known as the “EEOC Education, Technical Assistance, and Training Revolving Fund” (hereinafter in this subsection referred to as the “Fund”) and to pay the cost (including administrative and personnel expenses) of providing education, technical assistance, and training relating to laws administered by the Commission. Monies in the Fund shall be available without fiscal year limitation to the Commission for such purposes.

(2)(A) The Commission shall charge fees in accordance with the provisions of this paragraph to offset the costs of education, technical assistance, and training provided with monies in the Fund. Such fees for any education, technical assistance, or training–

(i) shall be imposed on a uniform basis on persons and entities receiving such education, assistance, or training,

(ii) shall not exceed the cost of providing such education, assistance, and training, and

(iii) with respect to each person or entity receiving such education, assistance, or training, shall bear a reasonable relationship to the cost of providing such education, assistance, or training to such person or entity.

(B) Fees received under subparagraph (A) shall be deposited in the Fund by the Commission.

(C) The Commission shall include in each report made under subsection (e) of this section information with respect to the operation of the Fund, including information, presented in the aggregate, relating to–

(i) the number of persons and entities to which the Commission provided education, technical assistance, or training with monies in the Fund, in the fiscal year for which such report is prepared,

(ii) the cost to the Commission to provide such education, technical assistance, or training to such persons and entities, and

(iii) the amount of any fees received by the Commission from such persons and entities for such education, technical assistance, or training.

(3) The Secretary of the Treasury shall invest the portion of the Fund not required to satisfy current expenditures from the Fund, as determined by the Commission, in obligations of the United States or obligations guaranteed as to principal by the United States. Investment proceeds shall be deposited in the Fund.

(4) There is hereby transferred to the Fund $1,000,000 from the Salaries and Expenses appropriation of the Commission.

ENFORCEMENT PROVISIONS

SEC. 2000e-5. [Section 706]

(a) Power of Commission to prevent unlawful employment practices

The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title [section 703 or 704].

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor­management committee controlling apprenticeship or other training or retraining, including on-­the-­job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-­management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge.

(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission; commencement of proceedings

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty- ­day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission

In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-­day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.

(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system

(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28 [United States Code], the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.

(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on judicial orders

(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

(2) (A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this Title [section 704(a)].

(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title [section 703(m)] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title [section 703(m)]; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

(h) Provisions of chapter 6 of Title 29 not applicable to civil actions for prevention of unlawful practices

The provisions of chapter 6 of title 29 [the Act entitled“An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes,” approved March 23, 1932 (29 U.S.C. 105-115)] shall not apply with respect to civil actions brought under this section.

(i) Proceedings by Commission to compel compliance with judicial orders In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order.

(j) Appeals

Any civil action brought under this section and any proceedings brought under subsection (i) of this section shall be subject to appeal as provided in sections 1291 and 1292, Title 28 [United States Code].

(k) Attorney’s fee; liability of Commission and United States for costs

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

CIVIL ACTIONS BY THE ATTORNEY GENERAL

SEC. 2000e-6. [Section 707]

(a) Complaint

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

(b) Jurisdiction; three-judge district court for cases of general public importance: hearing, determination, expedition of action, review by Supreme Court; single judge district court: hearing, determination, expedition of action

The district courts of the United States shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, and in any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a three-­judge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.

(c) Transfer offunctions, etc., to Commission; effective date; prerequisite to transfer; execution of functions by Commission

Effective two years after March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the functions of theAttorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5 [United States Code], inconsistent with the provisions of this subsection. The Commission shall carry out such functions in accordance with subsections (d) and (e) of this section.

(d) Transfer of functions, etc., not to affect suits commenced pursuant to this section prior to date of transfer

Upon the transfer of functions provided for in subsection (c) of this section, in all suits commenced pursuant to this section prior to the date of such transfer, proceedings shall continue without abatement, all court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of America, the Attorney General, or the Acting Attorney General, as appropriate.

(e) Investigation and action by Commission pursuant to filing of charge of discrimination; procedure

Subsequent to March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the Commission shall haveauthority to investigate and act on a charge of a pattern or practice ofdiscrimination, whether filed by or on behalf of a person claiming to beaggrieved or by a member of the Commission. All such actions shall beconducted in accordance with the procedures set forth in section 2000e-5of this title [section 706].

EFFECT ON STATE LAWS

SEC. 2000e-7. [Section 708]

Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

INVESTIGATIONS

SEC. 2000e-8. [Section 709]

(a) Examination and copying of evidence related to unlawful employment practices

In connection with any investigation of a charge filed under section 2000e-5 of this title [section 706], the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.

(b) Cooperation with State and local agencies administering State fair employment practices laws; participation in and contribution to research and other projects; utilization of services; payment in advance or reimbursement; agreements and rescission of agreements

The Commission may cooperate with State and local agencies charged with the administration of State fair employment practices laws and, with the consent of such agencies, may, for the purpose of carrying out its functions and duties under this subchapter and within the limitation of funds appropriated specifically for such purpose, engage in and contribute to the cost of research and other projects of mutual interest undertaken by such agencies, and utilize the services of such agencies and their employees, and, notwithstanding any other provision of law, pay by advance or reimbursement such agencies and their employees for services rendered to assist the Commission in carrying out this subchapter. In furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies and such agreements may include provisions under which the Commission shall refrain from processing a charge in any cases or class of cases specified in such agreements or under which the Commission shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement of this subchapter.

(c) Execution, retention, and preservation of records; reports to Commission; training program records; appropriate relief from regulation or order for undue hardship; procedure for exemption; judicial action to compel compliance

Every employer, employment agency, and labor organization subject to this subchapter shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this subchapter or the regulations or orders thereunder. The Commission shall, by regulation, require each employer, labor organization, and joint labor-­management committee subject to this subchapter which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of this subchapter, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applications were received, and to furnish to the Commission upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-­management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may apply to the Commission for an exemption from the application of such regulation or order, and, if such application for an exemption is denied, bring a civil action in the United States district court for the district where such records are kept. If the Commission or the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appropriate relief. If any person required to comply with the provisions of this subsection fails or refuses to do so, the United States district court for the district in which such person is found, resides, or transacts business, shall, upon application of the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision, have jurisdiction to issue to such person an order requiring him to comply.

(d) Consultation and coordination between Commission and interested State and Federal agencies in prescribing recordkeeping and reporting requirements; availability of information furnished pursuant to recordkeeping and reporting requirements; conditions on availability

In prescribing requirements pursuant to subsection (c) of this section, the Commission shall consult with other interested State and Federal agencies and shall endeavor to coordinate its requirements with those adopted by such agencies. The Commission shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained pursuant to subsection (c) of this section from any employer, employment agency, labor organization, or joint labor-­management committee subject to the jurisdiction of such agency. Such information shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under State or local law involving such information. If this condition is violated by a recipient agency, the Commission may decline to honor subsequent requests pursuant to this subsection.

(e) Prohibited disclosures; penalties

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

CONDUCT OF HEARINGS AND INVESTIGATIONS PURSUANT TO SECTION 161 OF Title 29

SEC. 2000e-9. [Section 710]

For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 [section 11 of the National Labor Relations Act] shall apply.

POSTING OF NOTICES; PENALTIES

SEC. 2000e-10. [Section 711]

(a) Every employer, employment agency, and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be prepared or approved by the Commission setting forth excerpts from or, summaries of, the pertinent provisions of this subchapter and information pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.

VETERANS’ SPECIAL RIGHTS OR PREFERENCE

SEC. 2000e-11. [Section 712]

Nothing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans.

REGULATIONS; CONFORMITY OF REGULATIONS WITH ADMINISTRATIVE PROCEDURE PROVISIONS; RELIANCE ON INTERPRETATIONS AND INSTRUCTIONS OF COMMISSION

SEC. 2000e-12. [Section 713]

(a) The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter. Regulations issued under this section shall be in conformity with the standards and limitations of subchapter II of chapter 5 of Title 5 [originally, the Administrative Procedure Act].

(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, or (2) the failure of such person to publish and file any information required by any provision of this subchapter if he pleads and proves that he failed to publish and file such information in good faith, in conformity with the instructions of the Commission issued under this subchapter regarding the filing of such information. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect, or (B) after publishing or filing the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this subchapter.

APPLICATION TO PERSONNEL OF COMMISSION OF SECTIONS 111 AND 1114 OF TITLE 18; PUNISHMENT FOR VIOLATION OF SECTION 1114 OF TITLE 18

SEC. 2000e-13. [Section 714]

The provisions of sections 111 and 1114, Title 18 [United States Code], shall apply to officers, agents, and employees of the Commission in the performance of their official duties. Notwithstanding the provisions of sections 111 and 1114 of Title 18 [United States Code], whoever in violation of the provisions of section 1114 of such title kills a person while engaged in or on account of the performance of his official functions under this Act shall be punished by imprisonment for any term of years or for life.

TRANSFER OF AUTHORITY

[Administration of the duties of the Equal Employment Opportunity Coordinating Council was transferred to the Equal Employment Opportunity Commission effective July 1, 1978, under the President’s Reorganization Plan of 1978.]

EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL; ESTABLISHMENT; COMPOSITION; DUTIES; REPORT TO PRESIDENT AND CONGRESS

SEC. 2000e-14. [Section 715]

[Original introductory text: There shall be established an Equal Employment Opportunity Coordinating Council (hereinafter referred to in this section as the Council) composed of the Secretary of Labor, the Chairman of the Equal Employment Opportunity Commission, the Attorney General, the Chairman of the United States Civil Service Commission, and the Chairman of the United States Civil Rights Commission, or their respective delegates.]

The Equal Employment Opportunity Commission [originally, Council] shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal Government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies. On or before October 1 [originally, July 1] of each year, the Equal Employment Opportunity Commission [originally, Council] shall transmit to the President and to the Congress a report of its activities, together with such recommendations for legislative or administrative changes as it concludes are desirable to further promote the purposes of this section.

PRESIDENTIAL CONFERENCES; ACQUAINTANCE OF LEADERSHIP WITH PROVISIONS FOR EMPLOYMENT RIGHTS AND OBLIGATIONS; PLANS FOR FAIR ADMINISTRATION; MEMBERSHIP

SEC. 2000e-15. [Section 716]

[Original text: (a) This title shall become effective one year after the date of its enactment.

(b) Notwithstanding subsection (a), sections of this title other than sections 703, 704, 706, and 707 shall become effective immediately.

(c)] The President shall, as soon as feasible after July 2, 1964 [the date of enactment of this title], convene one or more conferences for the purpose of enabling the leaders of groups whose members will be affected by this subchapter to become familiar with the rights afforded and obligations imposed by its provisions, and for the purpose of making plans which will result in the fair and effective administration of this subchapter when all of its provisions become effective. The President shall invite the participation in such conference or conferences of (1) the members of the President’s Committee on Equal Employment Opportunity, (2) the members of the Commission on Civil Rights, (3) representatives of State and local agencies engaged in furthering equal employment opportunity, (4) representatives of private agencies engaged in furthering equal employment opportunity, and (5) representatives of employers, labor organizations, and employment agencies who will be subject to this subchapter.

TRANSFER OF AUTHORITY

[Enforcement of Section 717 was transferred to the Equal Employment Opportunity Commission from the Civil Service Commission (Office of Personnel Management) effective January 1, 1979 under the President’s Reorganization Plan No. 1 of 1978.]

EMPLOYMENT BY FEDERAL GOVERNMENT

SEC. 2000e-16. [Section 717]

(a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage

All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5 [United States Code], in executive agencies [originally, other than the General Accounting Office] as defined in section 105 of Title 5 [United States Code] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

(b) Equal Employment Opportunity Commission; enforcement powers; issuance of rules, regulations, etc.; annual review and approval of national and regional equal employment opportunity plans; review and evaluation of equal employment opportunity programs and publication of progress reports; consultations with interested parties; compliance with rules, regulations, etc.; contents of national and regional equal employment opportunity plans; authority of Librarian of Congress

Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission [originally, Civil Service Commission] shall-

(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment;

(2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and

(3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity.

The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. The plan submitted by each department, agency, and unit shall include, but not be limited to-

(1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and

(2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program.

With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission [originally, Civil Service Commission] shall be exercised by the Librarian of Congress.

(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant

Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission [originally, Civil Service Commission] upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission [originally, Civil Service Commission] on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title [section 706], in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

(d) Section 2000e-5(f) through (k) of this title applicable to civil actions

The provisions of section 2000e-5(f) through (k) of this title [section 706(f) through (k)], as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties.

(e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity

Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government.

(f) Section 2000e-5(e)(3) [Section 706(e)(3)] shall apply to complaints of discrimination in compensation under this section.

PROCEDURE FOR DENIAL, WITHHOLDING, TERMINATION, OR SUSPENSION OF GOVERNMENT CONTRACT SUBSEQUENT TO ACCEPTANCE BY GOVERNMENT OF AFFIRMATIVE ACTION PLAN OF EMPLOYER; TIME OF ACCEPTANCE OF PLAN

SEC. 2000e-17. [Section 718]

No Government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same facility within the past twelve months without first according such employer full hearing and adjudication under the provisions of section 554 of Title 5 [United States Code], and the following pertinent sections: Provided, That if such employer has deviated substantially from such previously agreed to affirmative action plan, this section shall not apply: Provided further, That for the purposes of this section an affirmative action plan shall be deemed to have been accepted by the Government at the time the appropriate compliance agency has accepted such plan unless within forty-five days thereafter the Office of Federal Contract Compliance has disapproved such plan.

Virginia Human Rights Act – Number of Employees

Summary:

Basically under Virginia law, an employer must have five employees, before it can be held liable for discrimination.

Here is the actual Code (of Virginia) § 2.2-3901. Unlawful discriminatory practice and gender discrimination defined. Conduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability shall be an “unlawful discriminatory practice” for the purposes of this chapter. The terms “because of sex or gender” or “on the basis of sex or gender” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities. (1987, c. 581, § 2.1-716; 1991, c. 457; 1997, c. 404; 2001, c. 844; 2005, c. 839.)

2.2-3903. Causes of action not created.

A. Nothing in this chapter or in Article 4 (§ 2.2-520 et seq.) of Chapter 5 creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions, except as specifically provided in subsections B and C.

B. No employer employing more than five but less than 15 persons shall discharge any such employee on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, including lactation. No employer employing more than five but less than 20 persons shall discharge any such employee on the basis of age if the employee is 40 years of age or older. For the purposes of this section, “lactation” means a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast.

C. The employee may bring an action in a general district or circuit court having jurisdiction over the employer who allegedly discharged the employee in violation of this section. Any such action shall be brought within 300 days from the date of the discharge or, if the employee has filed a complaint with the Division of Human Rights of the Department of Law or a local human rights or human relations agency or commission within 300 days of the discharge, such action shall be brought within 90 days from the date that the Division or a local human rights or human relations agency or commission has rendered a final disposition on the complaint. The court may award up to 12 months’ back pay with interest at the judgment rate as provided in § 6.2-302. However, if the court finds that either party engaged in tactics to delay resolution of the complaint, it may (i) diminish the award or (ii) award back pay to the date of judgment without regard to the 12-month limitation.

In any case where the employee prevails, the court shall award attorney fees from the amount recovered, not to exceed 25 percent of the back pay awarded. The court shall not award other damages, compensatory or punitive, nor shall it order reinstatement of the employee.

D. Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures, and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances. Nothing in this section or § 2.2-3900 shall be deemed to alter, supersede, or otherwise modify the authority of the Division or of any local human rights or human relations commissions established pursuant to § 15.2-853 or 15.2-965.

(1987, c. 581, § 2.1-725; 1995, c. 838; 1997, c. 404; 2000, c. 933; 2001, c. 844, § 2.2-2639; 2002, c. 561; 2005, cc.756, 770, 857; 2012, cc. 803, 835; 2014, c. 635.)

Sexual Harassment Videos

Prohibited Employment Policies/Practices

Taken From

EEOC  – http://www.eeoc.gov/laws/practices/

Prohibited Employment Policies/Practices

On This Page

• Job Advertisements
• Recruitment
• Application & Hiring
• Background Checks
• Job Referrals
• Job Assignments & Promotions
• Pay And Benefits
• Discipline & Discharge
• Employment References
• Reasonable Accommodation & Disability
• Reasonable Accommodation & Religion
• Training & Apprenticeship Programs
• Harassment
• Terms & Conditions Of Employment
• Pre-Employment Inquiries
  
• Dress Code
• Constructive Discharge/Forced To Resign

Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The law forbids discrimination in every aspect of employment.

The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age.

Job Advertisements

It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

For example, a help-wanted ad that seeks “females” or “recent college graduates” may discourage men and people over 40 from applying and may violate the law.

Recruitment

It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

For example, an employer’s reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.

Application & Hiring

It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not refuse to give employment applications to people of a certain race.

An employer may not base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

If an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including pregnancy), national origin, or individuals with disabilities. In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age.

If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense.

Background Checks

See “Pre-Employment Inquiries” below.

Job Referrals

It is illegal for an employer, employment agency or union to take into account a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about job referrals.

Job Assignments & Promotions

It is illegal for an employer to make decisions about job assignments and promotions based on an employee’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers.

An employer may not base assignment and promotion decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including pregnancy), or national origin, or individuals with disabilities, unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees age 40 or older if the test is not based on a reasonable factor other than age.

Pay And Benefits

It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work.

In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers.

Discipline & Discharge

An employer may not take into account a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about discipline or discharge. For example, if two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age.

Employers also may not discriminate when deciding which workers to recall after a layoff.

Employment References

It is illegal for an employer to give a negative or false employment reference (or refuse to give a reference) because of a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

Reasonable Accommodation & Disability

The law requires that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the workplace (or in the ways things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

Reasonable accommodation might include, for example, providing a ramp for a wheelchair user or providing a reader or interpreter for a blind or deaf employee or applicant.

Reasonable Accommodation & Religion

The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause difficulty or expense for the employer. This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that he or she can attend religious services.

Training & Apprenticeship Programs

It is illegal for a training or apprenticeship program to discriminate on the bases of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not deny training opportunities to African-American employees because of their race.

In some situations, an employer may be allowed to set age limits for participation in an apprenticeship program.

Harassment

It is illegal to harass an employee because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

It is also illegal to harass someone because they have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment (including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature) is also unlawful. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Harassment outside of the workplace may also be illegal if there is a link with the workplace. For example, if a supervisor harasses an employee while driving the employee to a meeting.

Read more about harassment.

Terms & Conditions Of Employment

The law makes it illegal for an employer to make any employment decision because of a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

Pre-Employment Inquiries (General)

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

Employers are explicitly prohibited from making pre-employment inquiries about disability.

Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.

Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.

Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.

Pre-Employment Inquiries and:

• Race
• Height & Weight
• Financial Information
• Unemployed Status
• Background Checks
• Religious Affiliation Or Beliefs
• Citizenship
• Marital Status, Number Of Children
• Gender
• Disability
• Medical Questions & Examinations

Dress Code

In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.  However, there are a few possible exceptions.

While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers’ ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin.  For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.

Moreover, if the dress code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship.

Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.

Constructive Discharge/Forced To Resign

Discriminatory practices under the laws EEOC enforces also include constructive discharge or forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay.

Darvishian v. Department of the Army (2010)

Ali Darvishian,
Complainant,

v. 

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120090058
Hearing No. 570-2007-00338X
Agency No. ARBELVOIR06FEB00666

DECISION

On September 30, 2008, Complainant filed a timely appeal with this Commission from the Administrative Judge's (AJ's) decision1 dated July 23, 2008, dismissing his formal Equal Employment Opportunity (EEO) complaint of unlawful employment discrimination in violation Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.  The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission AFFIRMS the dismissal of Complainant's formal EEO complaint. 

ISSUE PRESENTED

The issue presented is whether the AJ properly dismissed Complainant's formal EEO complaint under the theory of res judicata, on the ground that this matter was already adjudicated before the Merit Systems Protection Board, and because Complainant filed a complaint in the U.S. District Court for the Eastern District of Virginia, in accordance with 29 C.F.R. § 1614.107(a)(2).

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed as a General Engineer, GS-14, by the Capital District Contracting Center.  On March 21, 2006, Complainant filed a formal complaint alleging that he was discriminated against on the basis of religion (Muslim), National Origin (Iranian), and in reprisal for prior EEO activity when, from February 23, 2006, to March 24, 2007, he was subjected to a hostile work environment.  On April 28, 2006, Complainant was issued a notice of proposed removal. Complainant immediately amended his complaint to reflect the issuance of the notice of proposed removal.  Complainant was removed from federal service effective July 11, 2006.

Complainant appealed his removal to the United States Merit Systems Protection Board (MSPB).  In an initial decision dated April 5, 2007, the MSPB AJ sustained each charge against Complainant, finding that he had not proved his affirmative defense, and ruled that the removal was reasonable.  Darvishian v. Dep't of the Army, MSPB Docket No. DC-0752-06-0740-I-2.  Complainant timely filed a Petition for Review (PFR) with the MSPB, which issued a final order denying Complainant's PFR on September 26, 2007.  Thereafter, Complainant timely filed a petition seeking Commission review of the MSPB decision.  On December 4, 2007, the Commission issued a decision concurring with the MSPB's finding of no discrimination.  Darvishian v. Dep't of the Army, EEOC Petition No. 0320080011 (Dec. 4, 2007).  The Commission found that the MSPB's decision constituted a correct interpretation of the laws, rules, regulations, and policies governing the matter, and was supported by evidence in the record.  

On January 4, 2008, Complainant filed a civil action in the U.S. District Court for the Eastern District of Virginia.2  On January 9, 2008, the EEOC AJ received a "Notice of Related Case" from the Agency outlining the procedural posture of the case.

On April 18, 2008 the U.S. District Court Judge granted the Agency's Motion for Summary Judgment, finding that the Agency was entitled to judgment as a matter of law on each of Complainant's claims of discrimination and retaliation.  Further, the U.S. District Court Judge held that a review of the administrative record demonstrated that the decision of the MSPB's AJ was supported by substantial evidence and was neither arbitrary and capricious, or contrary to law.

On May 14, 2008, the AJ issued a Show Cause Order "as a result of the Agency's submission of Merit System Protection Board (MSPB), EEOC Office of Federal Operations (OFO) and Federal District Court decisions unfavorable to Complainant regarding essentially the same set of issues and facts as in the present case before [him.]"3  AJ Decision of July 23, 2008, at n. 1.

On July 23, 2008, the AJ issued a decision dismissing Complainant's cause of action under the doctrine of res judicata, and on the ground that Complainant's filing before the District Court divests the Commission of jurisdiction to hear his discrimination claims.  



CONTENTIONS ON APPEAL

On appeal, Complainant contends that the majority of his claims were not relevant to, or considered by, the MSPB AJ when deciding whether the removal action was warranted.  It is Complainant's position that the issues outlined in his EEO complaint should not have been raised before the MSPB and therefore should not be precluded by res judicata.  Further, Complainant argues that his federal complaint makes no mention of any issue in his EEO complaint besides the removal, and that it was therefore distinct from the factual basis in his EEO complaint.  Citing to 29 CFR § 1614.107(a)(3), Complainant submits that a claim is only precluded if it is the basis for a district court complaint.  In response to Complainant's appeal, the Agency requests that the Commission affirm the judgment on behalf of the Agency on the same grounds articulated by the AJ in the July 23, 2008, decision. 
 
ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.  The doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of a complaint bars further claims by the same parties based on the same complaint or cause of action and issues relevant to that complaint, treating the judgment as the full measure of relief to be accorded between the same parties. See Magnallanes v. Dep't of Justice, EEOC Request No. 05900176 (July 13, 1990).

We find that the AJ properly dismissed the complaint under the doctrine of res judicata.  The record reflects that Complainant raised the bases identified in his underlying EEO complaint as an affirmative defense to his removal in his appeal to the MSPB.  See Agency's Response to Appellant's Appeal, Enclosure 6.   The MSPB AJ's decision specifically identifies incidents raised by Complainant in that forum "in support of his claim of a hostile work environment resulting from discrimination."  Darvishian v. Dep't of the Army, MSPB Docket No. DC-0752-06-0740-I-2, at 3.

When Complaint raised his alleged discrimination before the MSPB as an affirmative defense to his removal, he was obligated to raise his discriminatory harassment claim in that forum.  Allison v. Dep't of Justice, EEOC Appeal No. 01A34998 (Dec. 13, 2004).  This is particularly so where the incidents alleged by Complainant as evidence of his discriminatory removal are those incidents which he also alleges as evidence of discriminatory harassment; for example, the incident regarding his move to a cubicle, and the alleged statements by a lieutenant colonel regarding radical Muslims.  We note, in addition, that the MSPB AJ's determination on discrimination pertaining to these same events has already been reviewed by the Commission in EEOC Petition No. 0320080011.  We therefore find that Complainant is barred by res judicata from re-litigating his claims of discrimination based on before the Commission.  Id.

The record further reflects that the civil action filed by Complainant on January 4, 2008, in addition to challenging the MSPB's finding of no discrimination, alleges that he was discharged due to his national origin, religion, and race.  We find that the incidents raised in the instant complaint are encompassed in Complainant's claim already decided by the U.S. District Court for the Eastern District of Virginia.  See Williams v. U.S. Postal Serv., EEOC Appeal No. 01A53991 (Aug. 31, 2005).  Accordingly, the AJ's dismissal of the complaint is AFFIRMED.
 
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:

1.	The appellate decision involved a clearly erroneous interpretation of material fact or law; or

2.	The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period.  See 29 C.F.R. § 1614.604.  The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request.  Any supporting documentation must be submitted with your request for reconsideration.  The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances.  See 29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.  If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title.  Failure to do so may result in the dismissal of your case in court.  "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney with the Court does not extend your time in which to file a civil action.  Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:



______________________________
Carlton M. Hadden, Director
Office of Federal Operations


____11/18/10______________
Date


1 The record reflects that the Agency did not issue a Final Oder in this case.  Accordingly, the decision of the AJ became binding on the Agency.  See 29 C.F.R. § 1614.109(i).
2 Darvishian v. Dep't of the Army, No. 1:08cv009 (Jan. 4, 2008).
3 A copy of the Show Cause Order does not appear in the record, but its contents are not indispute.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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