staying square with the EEOC

Log onto the U.S. Equal Employment Opportunity Commission's Web site and it's instantly clear that though it's been nearly 40 years since the agency's founding, its mission of keeping America's workplaces free from discrimination is far from accomplished. Week after week, the EEOC posts pages of updates describing the resolution of a dizzying array of complaints: sexual harassment, discrimination against diabetics, racial bias, religious bias, same-sex harassment, pregnancy bias, national origin bias.

No one wants to become the subject of an EEOC investigation. But companies across the country are dropping into the commission's sights every day. In fiscal year 2002 alone, 84,442 individuals filed charges with the commission, indicating a widespread national ignorance of—or disregard for—federal anti-discrimination laws.

What does all this mean to you as a manager? At the very least, you need to be aware that under federal law, if you recruit, promote, hire or fire an employee, you must do it fairly, equally and without prejudice—considering only the person's skills and contributions to the company and nothing else. Statutes from Title VII of the Civil Rights Act to the Age Discrimination in Employment Act prohibit workplace discrimination and harassment. That means everyone at all levels of management must know the laws, understand them and follow their guidelines. If they don't, the EEOC is there to enforce those laws and investigate workers' complaints.

What follows are answers to some frequently asked questions about harassment and discrimination. For further information, go to the EEOC's Web site (www.eeoc.gov).

What constitutes "discrimination" or "harassment"? Discrimination is the act of treating someone differently from others due to a particular personal characteristic, such as race, gender or age. Harassment, a type of discrimination, is a hostile, offensive or intimidating action that is directed at someone because he or she has a protected personal characteristic. Sexual harassment is a type of gender discrimination and includes unwanted sexual advances.

Do the laws apply to all types of businesses? Most federal employment laws apply only to companies with a minimum number of personnel. According to the EEOC's Web site, the following are the statutory minimums with regard to discrimination laws:

• Title VII of the Civil Rights Act of 1964 applies to employers with fifteen (15) or more employees.
• The Age Discrimination in Employment Act of 1967 applies to employers with twenty (20) or more employees.
• Title I of the Americans with Disabilities Act of 1990 applies to employers with fifteen (15) or more employees.
• The Equal Pay Act of 1963 applies to most employers with one or more employees.

As you can see, chances are that most or all of these laws apply to your company.

What personal characteristics are protected? The laws make discrimination activities, including harassment, illegal only when the bias is based on at least one of these categories: race or color; gender; pregnancy or childbirth; national origin (including Native American tribe affiliates); religion; disability; and age (if the person is at least 40 years old). In addition, you should be aware of any state or local laws that may prohibit discrimination against people with additional protected characteristics such as sexual orientation, weight and marital status. (Contact your state department of labor or fair employment office for details on regulations that apply to your company.)

Elements that are specifically considered to be harassing conduct include the use of epithets (such as Giant John or Susan the Fair), mockery (ridicule or derisive imitation), demeaning jokes and cartoons, as well as implied and/or explicit threats of violence.

What types of activities are covered by these laws? It would be hard to name an activity that isn't covered by these laws. The ban against discrimination pertains to all terms, conditions and privileges related to employment in your company, including but not limited to hiring, firing, compensation, benefits, job assignments, shift assignments, promotions and discipline.

There are some minor allowances for exceptions under the laws. In a case where the employer can prove that the characteristic (or lack thereof) is intrinsic to performing the job, it may be able to obtain a bona fide occupational qualification exception. For example, if you're trying to fill a loading dock job that requires the worker to lift 45-pound boxes, you may have legitimate grounds for refusing to hire someone who is pregnant or physically disabled.

Does a complaint necessarily lead to a lawsuit? No. Whether you get sued or not largely depends upon how you handle the initial complaint. To keep out of trouble, managers must take even the hint of a violation seriously! For the most part, those employees (or former employees) who take their complaints to the EEOC are driven there by their supervisors' indifference or inaction. Say an employee goes to the department head with a complaint about harassment or hostility on the part of a section supervisor. The manager who acts on the complaint and works to correct the flawed relationship is likely to avoid a lawsuit. The manager who replies, "Yeah, you two don't like each other, do you?" is almost begging for a call from the EEOC.

Understanding the terms of the laws may help you avoid the problems that come from breaking them, like being sued or fined. But understanding the laws is not enough. You also need to have the right policies in place. Next month, we'll outline five easy steps to compliance with the EEO laws.