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SMALL BUSINESSES AND JOB DISCRIMINATION

SMALL BUSINESSES AND JOB DISCRIMINATION

Number of Employees

The federal Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the most widely applicable federal laws that prohibit discrimination in employment. The smallest of businesses are not subject to most of these statutes. Title I of the Americans with Disabilities Act (ADA), which prohibits employment discrimination against qualified individuals with disabilities, applies only to employers with 15 or more employees.

The same is true for Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits job discrimination based on race, color, religion, sex, and national origin. The threshold for coverage under the Age Discrimination in Employment Act (ADEA) is 20 or more employees. The Equal Pay Act, which is intended to prevent wage discrimination between men and women in substantially equal jobs in the same establishment, applies to most employers with at least one employee.

In calculating the number of employees for purposes of coverage of these statutes, all employees are counted, including part‑time and temporary workers. Independent contractors are not included, but the distinction between such workers and employees is often difficult to draw without the advice of legal counsel. Situated between the businesses so small as to be excluded from coverage and the Fortune 500 are thousands of small businesses to which the EEOC‑enforced laws apply.

Procedures

Anyone believing that his or her employment rights have been violated because of the types of discrimination covered by the federal laws, or because of retaliation for opposing job discrimination, filing a charge, or participating in proceedings under those laws, may file a charge of discrimination with the EEOC. In most states, the charge must be filed within 300 days of the date of the alleged discrimination. The EEOC will notify the employer within 10 days of receiving a charge.

If a charge is eligible, the EEOC will give the parties an opportunity to take part in voluntary, confidential ­mediation to reach mutually agreeable solutions. If all parties agree to participate, neutral mediators will work with them to that end. In the event that mediation is unsuccessful, the charge is referred for investigation by the EEOC.

An EEOC investigation may involve a responsive statement from the employer, the collection of documents by the EEOC, and visits and interviews by EEOC personnel. If the EEOC ultimately dismisses a charge, the charging party is notified and has 90 days to file a lawsuit. A finding by the EEOC of reasonable cause to believe that discrimination has occurred will lead to an invitation to the parties to enter into conciliation discussions. If they fail, the EEOC and/or the charging party may bring suit.

 

Discriminatory Practices

The range of discriminatory practices prohibited by EEOC‑enforced laws is much broader than just hiring and firing. If a prohibited discriminatory motive is the root cause of the decision or action taken, an employer can be held liable in such areas as compensation, assignments, transfers, promotions, layoffs and recalls, testing, and fringe benefits. The reach of these laws is also extended by catchall language prohibiting discrimination in all “terms and conditions” of employment.

Some forms of discrimination are peculiar to a particular statute. For example, unless the requirement is necessary for conducting business, a rule requiring that employees speak only English at work may constitute national origin discrimination in violation of Title VII. An employer’s failure to reasonably accommodate an applicant or employee is not pertinent to all of the discrimination laws, but it may create liability when the charge is discrimination based on religious beliefs or disability. Workplace harassment can be the subject of proceedings under any of the laws, but in practice it is most commonly asserted by women as a form of sex discrimination under Title VII.

 

Remedies

An employer found to have discriminated against an individual could be ordered to eliminate its discriminatory practices. It could also be required to take certain positive actions to redress the discrimination, such as hiring, increasing compensation, promoting, and reinstating an employee who was wrongfully terminated. Monetary remedies can take various forms, depending on the statute, including back pay and prejudgment interest, liqui­dated damages, and compensatory damages for noneconomic injuries such as emotional distress. In Title VII and ADA cases in which the employer has acted with reckless disregard for an individual’s federally protected rights, punitive damages may be awarded. The sum of punitive damages and compensatory damages (not including back pay), per person, may not exceed maximum amounts that increase with the employer’s number of employees.

Updates

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