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Most private employers are covered by various federal and state anti-discrimination laws.  While State fair employment practice statutes vary with regard to employer coverage, companies that employ more than a minimum number of people are prohibited from discriminated on the basis of certain protected traits, such as age, gender, race, religion, national origin, disability, and ancestry.  Similarly, employers with 15 or more employees are also subject to Title VII of the federal Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“Title VII”),  which prohibits discrimination on the basis of gender, race, religion, and national origin.

The federal Age Discrimination in Employment Act (ADEA), which applies to employers with 20 or more employees, prohibits discrimination in employment decisions based on age, and the federal Americans with Disabilities Act (ADA) prohibits discrimination in employment on the basis of actual or perceived disability.  In addition, there are other laws which prohibit discrimination based on gender in wages and salary and for recipients of federal funds.

Most of the foregoing laws prohibit intentional discrimination as well as policies and practices which may be facially neutral, but which have a disparate or disproportionate impact on minorities.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces most of the federal laws prohibiting discrimination in employment.  States that have adopted analogous antidiscrimination statutes also have agencies that enforces those statutes (for example, the New York State agency is called the New York State Division on Human Rights).  These agencies routinely issue regulations, enforcement guidelines, and interpretive guidance regarding specific issues, including prohibited inquiries of applicants and employees, use of medical examinations and other tests, forms of reasonable accommodation for disability, sexual harassment, use of release agreements in employment separations, and the like.  Because these laws and regulations can impact on virtually every employment decision, employers would be wise to thoroughly review these issues, conduct periodic training of employees, particularly managers and supervisors, and consult with legal counsel regularly.

The EEOC has issued guidelines for employers who want to avoid running afoul of the ADA and which attempt to help employers to understand two things: (1) what kinds of questions they can ask job applicants at the “pre-offer” stage, and (2) what kinds of examinations they can require of job applicants at the pre-offer stage.  The guidelines also discuss the parameters of “post offer” inquiries and examinations.  These guidelines can be obtained from the EEOC and are entitled “Enforcement Guidance: Pre-employment Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act of 1990, ”  EEOC notice 915.002 (May 19, 1994).  In the last decade, the EEOC has issued guidelines which offer employers assistance in interpreting and implementing the ADA, ADEA, and other anti-discrimination laws.  Most of these can be obtained on-line.

Category:Legal Considerations

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• Legal Considerations