EEO Handbook Statement [15+ Employees]

Guidance for Employers

• This Equal Employment Opportunity (EEO) policy is intended to be used in conjunction with the Sexual and Other Unlawful Harassment Handbook Statement [15+ Employees], which includes the detailed complaint procedures referenced in this policy.
• This statement includes bracketed language for employers with 20 or more employees that are subject to the Age Discrimination Employment Act (ADEA). Because the laws are close in coverage requirements employers with 15 or more may want to consider adding this language to their policies to convey to employees that age discrimination will not be tolerated and to avoid possible claims of age discrimination.
• Before taking any employment action (e.g., hiring, firing, promoting, disciplining or demoting an employee or applicant), ensure there is a legitimate business reason for the decision and that all actions are taken without regard to an individual's actual or perceived race, color, creed, religion, sex (including pregnancy), national origin, age (40 and over, if there are 20 or more employees), disability, genetic information, veteran status or any other characteristic protected by federal, state and/or local laws. The US Supreme Court issued a decision holding that Title VIIs prohibition against discrimination "because of sex" includes a prohibition against discrimination based on sexual orientation or gender identity. Many state and local laws also explicitly prohibit discrimination on these bases.
• Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, employers with more than three employees may not treat individuals differently based on citizenship or immigration status. United States citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination, though there are exceptions. Permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. In addition, citizenship status discrimination that is otherwise required to comply with law, regulation, executive order or government contract is permissible by law.
• Because the law varies in certain jurisdictions, it is recommended that if an employer's workforce is close to the 15/20-employee threshold, the employer should consult legal counsel before making a conclusion as to whether it is a covered entity.
• Treat employees fairly and consistently regardless of protected class status and document each employment action taken.
• Avoid stereotypes, favoritism and preferential treatment.
• Use respectful terminology in all communications.
• Understand that, under federal law, harassment is any conduct, behavior or action that threatens and intimidates another individual based on their protected class status and creates a hostile work environment. Harassment can take many forms and may be physical, written or verbal.
• Implement a multi-channel complaint system and designate representatives to field, address and follow up on complaints of discrimination and harassment.
• Ensure that employees are well aware of the potential consequences for engaging in discriminatory behavior.
• Create an atmosphere of open communication and trust so that employees can voice their discrimination and harassment concerns without fear of retaliation.
• Take all complaints of discrimination seriously. Promptly investigate all complaints and follow up with disciplinary measures if needed.
• Document the steps taken to investigate any discrimination or harassment complaint, as well as any remedial action taken to address discriminatory or harassing conduct. Remind all employees involved of the Company's strict zero-tolerance policy with regard to retaliation.
• The National Labor Relations Board (NLRB or the Board) considers it unlawful to require cooperation with company investigations without limitation because the requirement could be interpreted as requiring an employee to cooperate in an unfair labor practice investigation or else risk being disciplined. Employee participation in an interview as part of an unfair labor practice investigation must be completely voluntary.
• The NLRB closely scrutinizes the policies of both unionized and non-unionized employers. The Board applies a case-by-case review of rules and considers a rule presumptively unlawful if it "could" (rather than "would") be interpreted to limit employee rights to engage in protected concerted activity (e.g., talking about wages or conditions, petitioning for better working hours). The Board may find a rule invalid based on potential interference with activities that were not, or could not have been, foreseen by the employer when drafted, and even if the rule was never interpreted or applied in an unlawful manner.
• Whether a work rule implicitly limits an employee's protected concerted activities under the NLRB's standard is not considered from the standpoint of a "reasonable" employee, but instead based on the perspective of someone "economically dependent" on the employer who considers engaging in activity protected by the National Labor Relations Act (NLRA). Rules that are appropriate under ordinary workplace circumstances may be found improper by the Board specifically in the context of a theoretical employee considering organizing or engaging in other concerted activities, but fearful of doing so.
• The NLRB acknowledges there may be competing justifications for maintaining work rules. An employer can overcome the presumption of unlawfulness if it is able to prove both that a rule advances a "legitimate and substantial business interest" and that the employer is unable to achieve that interest with any narrower rule.
• Antidiscrimination policies can be at risk for NLRB scrutiny. Historically, workplace policies prohibiting inappropriate, offensive or even harassing conduct have been deemed unlawful and overbroad, particularly when construed as exceeding EEO goals and potentially infringing on employees' rights to engage in zealous and even confrontational behavior regarding the terms and conditions of their employment.
• This EEO policy has been drafted in a way that is conservative with regard to the NLRB's precedent on employer policies, but it is difficult to predict how the Board will respond to a given policy in this case-by-case analysis. Employers should exercise caution when drafting, customizing and implementing policies that, under the Board's expansive standard, could be viewed as impacting employees' protected activities under the NLRA.
• Washington State employers should be aware that the state's Silenced No More Act prohibits employers from discharging or otherwise discriminating or retaliating against an employee for disclosing or discussing conduct that the employee reasonably believed to be illegal harassment, illegal discrimination, illegal retaliation, wage and hour violations or sexual assault; that is recognized as illegal under state, federal or common law; or that is recognized as against a clear mandate of public policy, occurring in the workplace, at work-related events coordinated by or through the employer, between employees or between an employer and an employee, whether on or off the employment premises. Accordingly, Washington employers requiring employees to keep certain investigations confidential could run afoul of this law.
• Consider checking back in with a complaining employee after the resolution of a complaint to determine whether the employee feels the matter has been properly addressed and has not experienced retaliatory or additional discriminatory conduct.
• In addition to federal antidiscrimination laws, employers may be subject to state and local laws prohibiting discrimination. Some of these laws may include categories not protected under federal law and/or may extend to smaller employers than those covered under federal law. Employers should ensure that they are aware of and compliant with the state and/or local law in jurisdictions where they have operations and adjust EEO policies as appropriate.
• A critical component of achieving and supporting diversity in the workplace is ensuring that antidiscrimination policies are communicated effectively and enforced uniformly.
• Train all employees and supervisors on the employer's policies prohibiting discrimination, harassment and retaliation and ensure compliance with the employer's EEO policy.
• Download the "EEO is the Law" poster available in English, Spanish, Arabic and Chinese.