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DISCRIMINATION IN THE WORKPLACE
The various discrimination laws that apply to hiring also must be followed after employment starts. Different aspects of day-to-day business must be free of employment discrimination. To do this, it is important to have a working knowledge of discrimination law. Remember, discrimination needn't be intentional to be wrong. In order to steer clear of lawsuits, try to avoid appearing discriminatory, even though you may not be breaking any laws. Almost any managerial decision is a point where discrimination can occur. TRAINING Assure that all employees are being included in training that will help to qualify them for higher positions. Review both on-the-job and outside training opportunities. PROMOTIONS Assure that qualified minorities and women are considered for promotion, especially where underutilization exists. ('Underutilization' means having fewer minorities or women in a particular job classification than would reasonably be expected by their availability). Equal opportunity applies throughout the organization, not just in entry-level jobs. LAYOFF AND RECALL If layoff and recall policy is other than by seniority, be prepared to explain it carefully. Be prepared to explain if employees with any protected characteristics (such as minorities, females, disabled, older employees) are terminated proportionately more frequently than non-minorities, men, non-disabled, or younger employees. Have records available explaining reasons for discharges and quits (documented counseling sessions, improvement programs, poor work performances, exit interviews, disciplinary actions and written warnings signed by the employee, etc.). Such records should be kept at least one year after the termination. Be ready to justify your overall compensation system. Work does not have to be identical to be considered equal. Substantially equal skill, effort and responsibility, and similar working conditions are sufficient to require the same pay range. (Note: a union contrast is no defense for discriminatory pay rates). PERFORMANCE EVALUATION & COUNSELING To be deemed acceptable, such programs should be relevant, objective, and not have an adverse effect on protected classes of employees. RECORD KEEPING Records used for evaluation, promotion, etc. (for example, disciplinary actions, references, counseling), must be timely and relevant. Under the Illinois Personnel Record Review Act, employees have a right to review their records twice a year and former employees have a right to review their personnel records within one year of termination. PHYSICAL OR MENTAL DISABILITY UNRELATED TO ABILITY By law, employers cannot consider physical or mental disabilities unrelated to an employee's ability to perform the essential functions of his or her job when making decisions about promotions, demotions pay scales and the like. And, if the employee is unable to perform the essential functions of the job because of his or her disability, the employer must engage in an interactive process with the employee to determine whether a reasonable accommodation exists that would allow the employee to perform the essential functions. Be sure that all of your employee benefit plans are administered without any adverse effect on "protected classes" (for example, age and sex), and that pregnancy-related disability is not handled less favorably than other disabilities. Under the Older Workers Benefit Protection Act of 1990, the amount of payment made or cost incurred on behalf of an older worker must be no less than that made or incurred on behalf of a younger worker. The benefit area has become an increasingly complex area as federal laws, rules and regulations respond to concerns about sex equality and age discrimination.
The Omnibus Budget Reconciliation Act of 1986 requires additional benefits and/or contributions under employer-sponsored qualified retirement plans for employees who work past normal retirement age.
The Health Insurance Portability and Accommodation Act of 1966 (HIPAA), also forbids discrimination. HARASSMENT Harassment of any individual in the work environment because of race, religion, color, age, sex, national origin, disability or veteran status is intolerable behavior. It is also a violation of the law. Furthermore, harassment with respect to any protected category is discrimination and is therefore unlawful on a second level.
In recent years, sexual harassment has received more attention in the newspapers and in the U.S. Supreme Court than any other form of harassment. Employers with 15 or more employees cannot have a mandatory retirement age. The federal laws has a 20 or more employee threshold. Separations from employment must now be for reasons other than simply reaching a certain age. There is a very narrow exception to mandatory retirement for an employee in a highly-paid capacity for at least two years prior to termination if the employee is receiving a pension of at least $44,000 a year (29 USC Sect. 631c). There is also a public safety officer's exception reinstated in the Omnibus Consolidated Appropriations Act of 1997 (PL 140 - 208). This permits state and local governments to enact new mandatory age requirements for the hiring and retirement of firefights and law enforcement officers. In Illinois, the police/paramedic/firefighter bill (PA 80 - 481), effective August 1, 1997, allows an exception to the age discrimination law. Also see: Federal Age Discrimination in Employment Act: Costs & benefits under employer benefit plans
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