Equal Employment Opportunity

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 race, color, religion, sex, and national origin. Sex discrimination under Title VII has, since the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, also been held to include discrimination based on sexual orientation or gender identity. (Note: separate EEOC sub-regulatory guidance addressing gender-identity-related harassment issues, issued in 2024, was rescinded by the EEOC in January 2026 amid ongoing litigation over its scope — but the underlying Bostock holding itself remains binding Supreme Court precedent.)

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), which applies to employers with 15 or more employees, 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. (Note: this "disparate impact" theory remains valid law under Title VII, but federal enforcement priorities have shifted — a 2025 executive order directed federal agencies to deprioritize disparate-impact enforcement, so employers should expect reduced federal enforcement activity in this area even though the underlying legal theory has not been struck down by courts.)

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 of 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: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act,”  issued October 10, 1995 (superseding the earlier May 19, 1994 draft). Employers should note this guidance predates the ADA Amendments Act of 2008, which broadened the statutory definition of disability effective January 1, 2009, so it should be read together with current EEOC guidance reflecting that amendment.  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.