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Editor's Note: Under Title VII of the Civil Rights Act of 1964 and related federal nondiscrimination laws, employers can't discriminate against employees and applicants based on race, color, religion, sex, age, national origin, citizenship status, disability, genetic information, and veteran status. On June 15, 2020, the U.S. Supreme Court ruled that employers violate Title VII's prohibitions against sex discrimination if they fire employees based on sexual orientation or gender identity (Bostock v. Clayton County, No. 17-1618, 2020 BL 220638 (U.S. June 15, 2020), consolidated with Altitude Express, Inc. v. Zarda (No. 17-1623); R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (No. 18-107)).
Employers also must abide by state nondiscrimination laws that can include a more expansive list of protections than federal law (for example, protections based on marital status or criminal convictions).
Equal employment opportunity policies communicate employers' commitment to nondiscrimination. Employers adopt EEO policies to attract a wide pool of applicants and to help ensure that managers and employees abide by federal and state nondiscrimination laws. Although federal law doesn't require employers to adopt an EEO policy, most federal contractors must communicate their EEO commitment to employees and applicants through affirmative action programs.
Because different considerations apply to the various steps of the hiring process, employers frequently establish separate policies governing the crucial steps of the selection and hiring process. For example, employers might supplement an overall or general hiring policy with specific policies that outline their organizations' procedures in such areas as job requisition and posting, interviewing and testing, and reference checking. Most employers also issue separate equal employment opportunity policies that spell out their commitment to fair, nondiscriminatory practices in all areas and aspects of the employment relationship.
Employers can review the following materials to help them develop and maintain policies on equal employment, accommodate employees dealing with gender transitions, and document information gathered while investigating discrimination complaints:
• Gender Transition Policy; and
Items employers should consider in developing equal employment opportunity policies include:
⃞ Nondiscrimination clause.
Comment: Every EEO policy should include a nondiscrimination clause that outlines employers' commitment against discrimination. Multi-state employers might want to have a broad overall EEO policy and separate policy statements listing specific EEO protections in each state in which they operate.
⃞ Federal contractors.
Comment: Federal contractors can be required to take special measures, including affirmative action, to promote equal employment opportunities for certain groups of employees and applicants such as women, minorities, persons with disabilities, and veterans. Employers should ensure that their policies comply with any such requirements if they are covered by Executive Order 11,246, Section 503 of the federal Rehabilitation Act, or the federal Vietnam-Era Veterans' Readjustment Assistance Act.
Comment: Employers can address their commitment to diversity in their workplaces in their EEO policies. Employers should recognize that diversity, as achieved through recruiting and other means, is a business issue. How well companies manage diversity can determine productivity levels, depth of employee morale and engagement, quality of work life, and success in competing in global markets. Workforce diversity traditionally is viewed in terms of race, gender, age, or other protected characteristics. It also encompasses differences in economic status, geographic origin, personal values, lifestyles, education, personality characteristics, job functions, and job tenure.
⃞ Criminal history.
Comment: Employers that use employees' and applicants' criminal history information to make employment decisions should ensure that such use complies with Title VII of the federal Civil Rights Act of 1964. Employers also must comply with state nondiscrimination laws that restrict the use of employees' and applicants' criminal history information.
⃞ Sexual orientation, gender identity, and gender expression.
Comment: Employers should ensure that their EEO policies comply with all federal and state protections for employees and applicants based on sexual orientation, gender identity, and gender expression.
⃞ Pay transparency.
Comment: Employers risk violating state and federal prohibitions regarding pay transparency if they prohibit employees and applicants from asking about, discussing, or disclosing their compensation or other employees' compensation.
⃞ Veterans' preference.
Comment: Employers can create veterans' preferences as permitted under state law, but they should ensure that such preferences are nondiscriminatory and comply with Title VII of the federal Civil Rights Act of 1964.
Comment: Employers should ensure that EEO policies extend to all employee benefits policies and practices.
⃞ Complaint procedures.
Comment: EEO policies should provide a confidential means for employees to report discriminatory conduct or harassment. By including specific complaint provisions in EEO policies, employers can become aware of, investigate, and resolve EEO-related complaints before employees complain to the federal Equal Employment Opportunity Commission or state EEO agency. Policies also should assure employees that their complaints will be handled fairly, quickly, and without reprisals and that their participation in internal investigations regarding such complaints aren't subject to retaliation.
Comment: EEO policies should emphasize that employees and applicants won't be retaliated against for opposing discriminatory practices, filing discrimination complaints, or participating in investigations of these complaints, including when responding to questions during internal investigations.
Comment: Employers should implement training on federal, state and local EEO laws for all managers and supervisors involved in making personnel decisions; they also should train all employees on complying with employers' EEO policies. Employers should conduct such training at the time of hire to alert new employees, including managers and supervisors, on expected conduct in the workplace concerning nondiscriminatory behavior. To ensure compliance with expected workplace conduct concerning nondiscriminatory behavior, employers should conduct annual training on nondiscrimination laws for managers and supervisors and annual training on employers' EEO policies for all employees. In addition, many organizations also conduct diversity training directed at helping managers appreciate the strengths of a diverse workforce and better understand and communicate with employees of a different gender or employees with a different cultural background, sexual orientation, or other personal characteristics.