Equal Employment Opportunities and Affirmative Action In Higher Education

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1 Higher Education Institute: Avoiding Compliance Pitfalls Across Your Campus From Admissions to the Title IX Office to the Board Room Equal Employment Opportunities and Affirmative Action In Higher Education Presented by: Amy L. Hemenway and Anna S. M. McCarthy

2 Overview Background: Discrimination on Campuses Recent Rules Targeting Discrimination Sticking to the Rules Now and Beyond Tracking Compliance

3 Background: Discrimination on Campuses Focus: Structural diversity Common Barriers: Isolation Tokenism Lack of respect Institutional racism Unequal standards

4 Background: Discrimination on Campuses Beginnings: 1960s: Civil Rights and Equal Employment legislation for women and minorities in the workplace 1973: court-mandated increase in minority faculty at public institutions Now: Minority faculty members remain underrepresented Female faculty members are outnumbered by male counterparts

5 Background: Discrimination on Campuses National Center for Education Statistics (2013)

6 Recent Rules Targeting Discrimination OFCCP creates and enforces anti-discrimination rules and regulations in the workforce OFCCP rules and regulations apply to federal contractors: (1) Entity holding a single federal contract, subcontract in excess of $10,000; or (2) Entity holding federal contracts or subcontracts in excess of $10,000 in any 12-month period OFCCP rules and regulations protect employees and applicants who seek to work for federal contractors

7 Recent Rules Targeting Discrimination Generally: The Equal Employment Clause ( EEO Clause ) must appear in all contracts and subcontracts entered into by a federal contractor Statement that federal contractors and subcontractors shall abide by the regulations of the OFCCP, which prohibit discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, and protected veteran status This Clause, with related anti-discrimination regulations, requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified minorities and females, qualified protected veterans, and qualified individuals with disabilities

8 Recent Rules Targeting Discrimination 2014: Anti-Discrimination Updates Based Upon: Disability Status (Section 503 of the Rehabilitation Act of 1973) Veteran Status (Vietnam Era Veterans Readjustment Assistance Act of 1974 [ VEVRRA ]) Changes include: Ads: entities must state that they are equal opportunity employers of individuals with disabilities and those who are veterans, with a citation to the EEO Clause and specific language to alert subcontractors to their obligations as federal contractors Employers must invite employees to voluntarily self-identify as individuals with disabilities and/or protected veteran status Employers must do an annual self-assessment of outreach efforts Employees may change their disability status at any time

9 Recent Rules Targeting Discrimination Update to the enforcement of E.O from the Mad Men era to the Modern Era E.O : prohibits discrimination against employees and applicants because of their race, color, religion, sex, sexual orientation, gender identity, or national origin Old Rule not amended substantively since 1970 New Rule effective August 15, 2016

10 Recent Rules Targeting Discrimination What does the new rule do? Addresses barriers to equal opportunity and fair pay Aligns OFCCP s regulations with current law and the realities of the modern workplace in certain areas: Pay discrimination Sexual harassment Lack of pregnancy accommodations Gender identity discrimination Note: there is an exemption for those entities protected by the Religious Freedom Restoration Act ( RFRA )

11 Recent Rules Targeting Discrimination Prohibition against Pay Discrimination Promotion of fair pay practices Opportunities for overtime, training, better pay or higher-paying positions cannot be denied based upon sex Employees may recover lost wages any time a contractor pays compensation that is the result of discrimination, and not only when the decision to discriminate is made

12 Recent Rules Targeting Discrimination Prohibition against Sexual Harassment Sexual advances Requests for sexual favors Offensive remarks about a person s sex Verbal or physical conduct of a sexual nature when: (1) it unreasonably interferes with an individual s work performance; (2) it becomes the basis for employment decisions; or (3) it creates a hostile work environment

13 Recent Rules Targeting Discrimination Prohibition against Lack of Pregnancy Accommodations Includes pregnancy, childbirth, or related medical conditions Projected Benefits: Employees gain economic security Employers benefit from an increase in retention Future Requirements: Workplace accommodations such as extra bathroom breaks and light-duty assignments

14 Recent Rules Targeting Discrimination Prohibition against Gender Identity Discrimination Gender identity = one s internal sense of one s own gender, which may or may not correspond to the sex of a person at birth and may or may not be visible to others Includes protection of transgender individuals Requirements for employers: Permit employees to use bathrooms, changing rooms, showers and similar facilities consistent with their gender identity Explicit, categorical exclusion of coverage for all care related to gender dysphoria or gender transition is facially discriminatory

15 Recent Rules Targeting Discrimination Prohibition against Sex Stereotype Discrimination Male and female employees must NOT be treated differently because they fail to comply with expectations about how women and men should look or act or what types of jobs they should do Male and female employees MUST: (1) Receive equal fringe benefit plans (2) Have equal access to jobs and workplace development (3) Be treated equally with respect to caregiving responsibilities

16 Recent Rules Targeting Discrimination Enforcement Any policy that is facially neutral, but has a disparate impact is prohibited OFCCP has the ability to investigate and take action in response to employees claims of discrimination Minor exception: good faith progress Note: the impact of the rule will not be fully known until it is litigated in the court system

17 Sticking to The Rules Now and Beyond General Best Practices: Ensure all required notices are posted informing applicants of their EEO rights Use of self-identification forms at both pre-offer and post-offer stage Update recordkeeping procedures to incorporate a 3 year retention requirement for data collection and external outreach information Note: hiring benchmark under VEVRAA is 6.9% utilization goal under Section 503 is 7%

18 Sticking to The Rules Now and Beyond Best Practices for Sex Discrimination-Related Rules: Designate restrooms or similar facilities as single-use/unisex Provide light-duty/modified assignments for pregnancy-related conditions Provide appropriate time off and flexible workplace for men and women Encourage men and women to engage in caregiving-related activities Foster environment in which all employees feel safe and are treated fairly: (1) communicate that harassment will not be tolerated; (2) provide anti-harassment training to all personnel; and (3) establish and implement procedures for handling and resolving complaints about sexual harassment

19 Sticking to The Rules Now and Beyond Best Practices for Tenure-Related Issues: Criteria for any reappointment or promotion should be made clear at the time of appointment and reviewed with individual on a regular basis No sex or race-based qualifications: decision to seek diversity is acceptable, but cannot be used to deny retention or advancement Once a female and/or minority candidate is tenured, care should be taken to ensure that the individual is provided with opportunities for professional development

20 Tracking Compliance Comprehensive records kept for at least 3 years to ensure readiness for a government audit Applicant Flow Log is a necessary tool for gathering, segregating and automatically reporting the necessary statistics Applicant = an individual who expressed interest through the internet, was considered, possessed the basic qualifications and did not remove themselves from consideration prior to receiving an offer of employment Employers must track expressions of interest whether this is expressed during phone screening, online screening or in-person interviews

21 Tracking Compliance Record keeping can help support a defense to a claim of discrimination Defense = a legitimate, non-discriminatory reason for an adverse employment decision

22 Questions?

23 Contact the Presenters Amy L. Hemenway Location: Buffalo Phone: Anna S.M. McCarthy Location: Buffalo Phone: Website: