Summary of Applicable Laws and Policy Guidelines

The following is intended to provide a very brief summary of several important laws prohibiting employment discrimination. It is not intended to provide an exhaustive survey of applicable laws, nor is it a substitute for personal legal advice, and it should not be relied upon as such. More information about the employment laws is available from the Office of Human Resources and from the Senior Legal Counsel.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate in hiring, firing, compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin.

In addition, it is unlawful to discriminate on any of these five bases in selection for apprenticeship, training, or retraining programs or to limit, segregate, or classify employees in ways which may deprive them of employment opportunities or adversely affect their status as an employee. It is also illegal to indicate preference or to discriminate based on race, color, religion, sex, or national origin in advertisements relating to employment.

An employer's policies and procedures may violate Title VII in any of three ways. First, a policy which "on its face" limits benefits or opportunities to a protected class is discriminatory in treatment. For example, a policy which expressly excludes women from participating in an employee fitness program is discriminatory in treatment. Secondly, a policy which is neutral on its face but is not applied equally to all employees is discriminatory in enforcement. For example, when Hispanics are discharged for a first offense rule infraction while whites receive only a warning for the same offense, the employment practice is considered discriminatory in enforcement. Finally, when a neutral policy or rule has a discriminatory impact on a protected group, then the practice has discriminatory impact (e.g., the use of arrest records to determine an applicant's suitability for employment has a discriminatory impact on nonwhites).

These prohibitions, however, are subject to some exceptions.

Exceptions: A broad exception to the anti-discrimination prohibitions makes it clear that wage differences are permitted when based on merit, seniority, and quantity or quality of production. The law makes exceptions for discrimination resulting from a bona fide occupational qualification such as requiring a female actor for a female role for purposes of authenticity. Such exception, however, is applicable only to discrimination based on religion, sex, or national origin. Title VII does not recognize occupational qualification based on race or color as bona fide.

RECRUITING AND HIRING

A basic procedure for recruiting and selecting employees that does not intentionally or inadvertently screen out minority group members is essential. An employer is not required to hire a designated quota of minority group members. But serious imbalance in the work force, when compared to proportions in the area, might suggest to Federal officials that something is wrong with hiring policies. Relying on walk-in applicants and word-of-mouth recruiting may not be enough. Targeted recruiting may be necessary.

The extent of homogeneity in the current work force determines the extent to which Federal agencies require affirmative acts to increase minority recruitment. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer with a disproportionately low number of minority group members in the work force probably has acquired a reputation as a discriminatory employer. In such a case, announcing a policy of equal employment opportunity might not be regarded as enough to offset this reputation.

Also, an employer with good minority representation among service workers is not necessarily in the clear. A disproportionately low number of minority group members in white-collar, professional, or supervisory jobs suggests that special recruiting efforts are needed in these areas.

Hiring Standards

Special attention should be given to hiring standards that reflect the norm of a community's predominant group. The hiring unit must be prepared to demonstrate that their hiring standards do not automatically screen out applicants whose speech, dress, and personal work habits differ from those of the predominant group.

The hiring unit must be able to demonstrate that any employment tests or other job screening standards that are used, such as possession of a high school diploma, are reasonable measures of successful job performance. Employment tests including asking an applicant to perform a job task, must be validated as predictors of on-the-job performance.

Hiring Requirements

A hiring policy may be objectively and fairly applied to all applicants, yet still discriminate against one group and so be ruled discriminatory under Title VII (adverse impact). For example:

Height Requirements--Rigid adherence to a height requirement for hiring purposes in positions where height is not directly related to performance can discriminate against certain groups whose members consistently fall below such a standard, such as women and Spanish-surnamed Americans.

Appearance, Manner of Speech--Rejection of a job applicant because of appearance and manner of speaking may be unlawful if the appearance and manner of speaking are unique to race or national origin.

EMPLOYMENT CONDITIONS

The law against employment discrimination extends to virtually every aspect of the employer-employee relationship including discrimination with respect to compensation, terms, conditions, or privileges of employment.

Wages: Discrimination with respect to compensation covers a variety of practices, such as:

• starting rates or merit increases based on race, sex, religion, or national origin rather than qualifications or performance, and
• different treatment of employees with respect to overtime pay opportunities when based on race, sex, religion, or national origin.

Training and Promotion: Employees of similar capabilities must be offered the same opportunities for training, promotion, transfer, and apprenticeship programs.

Discriminatory Environment: Title VI and Title VII of the 1964 Civil Rights Act require an employer to maintain a working environment free of racial, sexual, or ethnic intimidation. This requirement includes positive action when necessary to redress or eliminate employee intimidation.

If harassment of a minority group or female employee by co-workers or a supervisor occurs, management is obligated to attempt to remedy the situation. The announcement of a policy against discrimination may not be sufficient if harassment is occurring. Management must take steps to ensure that the policy is observed at all levels.

Work Assignments: It is unlawful to give employees a disproportionately large share of the less desirable assignments or less favorable hours on the basis of race, sex, national origin, or religion.

Facilities: Facilities must be open on an integrated basis to all employees.

Employer Reprisal: The 1964 Civil Rights Act prohibits taking reprisals against employees who initiate, testify, or participate in proceedings (as allowed under the Act) against the employing institution.

NATIONAL ORIGIN DISCRIMINATION

Discrimination on the basis of the physical, cultural, or linguistic characteristics associated with a national origin group is prohibited.

Job requirements such as fluency in English must be shown to be accurate measures of job performance and must fairly assess educational credentials from foreign institutions. In addition, a working environment must be maintained that is free from ethnic slurs, jokes, or other verbal or physical behavior which unreasonably interfere with an employee's work performance.

RELIGIOUS DISCRIMINATION

Reasonable accommodation must be made to the religious needs of employees where such accommodations do not create undue hardship on the University.

Religion is defined to include all aspects of religious observance, practice, and belief, such as grooming habits, Sabbath observance, observance of mourning, or prohibition of medical examination. Reasonable accommodation may include practices such as prayer breaks, shift swaps, flexible scheduling, or change of job assignments which may differ from the employer's or the potential employer's requirements regarding schedules or other business-related conditions.

SEX DISCRIMINATION

Hiring standards are not permitted that prohibit women from:

• carrying or lifting weights in excess of set limits,
• working during certain night hours,
• working more than a specified number of hours per day or week, or
• working for set time periods before or after childbirth.

Rules that limit or restrict employment of married women but are not applicable to married men are not permitted. An employment policy that excludes applicants or employees (married or otherwise) due to pregnancy is not permitted.

Executive Order 11246 requires Federal contractors and subcontractors to take affirmative action to ensure that equal employment opportunity is a reality and to remedy effects of past discrimination which resulted in significant underutilization of women and minorities.

The ADEA law forbidding employment discrimination on the basis of age applies only to individuals age 40 and above. It is unlawful "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual's 'age'."

Under the ADA, a disabled person is anyone who:

• has a physical or mental impairment which substantially limits one or more major life activities,
• has a record of such an impairment, or
• is regarded as having such an impairment.

The ADA prohibits discrimination based on disability. An employer cannot eliminate an otherwise qualified disabled applicant or employee on the basis of the disability alone.

A "qualified" individual with a disability is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job.

Reasonable accommodation may include:

• modification of employee facilities to provide ready accessibility and usability to such a person;
• job restructuring (reassigning nonessential duties and/or using part-time or modified work schedules);
• acquisition or modification of equipment or devices;
• provision of readers or interpreters; and/or
• other similar actions.

Adjustments must be made for the known limitation of otherwise qualified disabled applicants and employees, unless a particular adjustment or alteration is demonstrated to impose undue hardship.

Provisions Relative to Communicable and Infectious Diseases

People who are infected with a communicable or infectious disease, including Acquired Immune Deficiency Syndrome (AIDS) are disabled if the disease results in an impairment which substantially limits one or more major life activities. All of the policies that apply to people with handicaps also apply to people with communicable and infectious diseases, including the requirement for a reasonable accommodation to the known limitations of an otherwise qualified applicant or employee.

North Carolina law permits an employer to fail to hire, transfer, promote, or to discharge a disabled person if the person has a communicable disease which would disqualify a nondisabled person from similar employment. However, such action may be taken only if the continuation by the employee poses a significant risk to the employee, co-workers, or the public, or if the employee is unable to perform the normally assigned duties of the job. There must be documentation of consultation with private physicians and/or public health officials in arriving at the decision. In the absence of a medically documented health hazard to other persons, concern for other employees who may fear working with the infected co-worker must never be the basis for the decision.

The Vietnam-Era Veteran's Readjustment Assistance Act of 1974 established affirmative action for disabled and qualified veterans of the Vietnam era, and prohibits discrimination against veterans in all employment practices.

A disabled veteran is a veteran entitled to Veteran's Administration compensation for a disability rated 30 percent or more, or a veteran whose disability was incurred or aggravated in the line of duty.

A veteran of the Vietnam era is a person who:

• served on active duty for 180 days or more during the Vietnam War (August 5, 1964 to May 7, 1975) and who was released with other than a dishonorable discharge, or
• served during the Vietnam war and was released from duty for a service-connected disability.

Veterans are invited to identify themselves and employers are required to maintain records of veteran placement.