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Know the Rights: Employment Discrimination EEOC Processes

Under federal law, it is illegal to discriminate in any aspect of employment, including:

• hiring and firing; • compensation, assignment, or classification of employees; • transfer, promotion, layoff, or recall; • job advertisements; • recruitment; • testing; • use of company facilities; • training and apprenticeship programs; • fringe benefits; • pay, retirement plans, and disability leave; or other terms and conditions of employment. Discriminatory practices under federal and state law include: • harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age; • retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; • employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and • denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. • Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

Below are answers to the most often asked questions regarding employment law: Which Employers and Other Entities Are Covered by These Laws?

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008 cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

The Age Discrimination in Employment Act of 1967 covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.

The Equal Pay Act of 1963 covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.

Title VII, the ADEA, GINA, and the EPA also cover the federal government.

Who Can File a Charge of Discrimination?

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

o A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights. o This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days. o These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

To protect your legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

When do you I get my day in court?

When a charge of discrimination is dismissed by the EEOC, a written notice is issued that gives the charging party 90 days in which to file a lawsuit. You need to contact an attorney sooner rather than later when you receive this letter to insure that you meet the statute of limitations for filing your lawsuit.

A termination that is unfair is not necessarily illegal.

In most circumstances, employers can terminate employees “at will,” meaning at any time for any reason, and they are not required by law to give the reason for a discharge. There are, however, exceptions to the “at will” rule. It is illegal for your employer to terminate you:

• because of your race, sex, color, national origin, religion, gender, sexual orientation, gender identity (such as transgender status), age or disability (including pregnancy), medical condition, language (or accent), or marital status; • in retaliation for enforcing your own legal rights (such as filing a claim for unpaid wages, worker’s compensation, or reporting discriminatory behavior); • in violation of a contract; or • because you have reported your employer to a government agency or to the police.

If you have experienced discriminatory behavior at your workplace, you should file a charge of discrimination with the Equal Employment Opportunity Commission. You must take this action before filing a lawsuit for certain types of discriminatory behavior.

What are my rights under FMLA?

Workers can get 12 weeks of unpaid medical leave, with the right to return to work. Under family/medical leave laws, you are entitled to 12 weeks (used consecutively or intermittently) of unpaid leave from work to “bond” with a newborn baby or if you, your children, your parents, or your spouse have a “serious health condition.” During your leave, your employer must maintain your health benefits and must reinstate you to the same or equivalent position when you return. To qualify, you must meet the following criteria:

• Your employer must have 50 employees within a 75-mile radius of your worksite; • You have worked at your job for at least one year; • You have worked at least 1,250 hours during the previous 12 months; • If the leave is for a “serious health condition,” the condition must last for more than three days and involve continuing treatment by a health care provider.

You may be an “employee” even if you are called a “contractor.”

Your designation as an “employee” or as an “independent contractor” is determined by how you do your work, not by your job title. If you are an employee, you are eligible for workers’ compensation and protection against discrimination. You do not have these protections if you are an independent contractor. What is the difference between an employee and an independent contractor? There is no one simple test; it is necessary to weigh a number of factors. Answers of “yes” to the following questions make it more likely you should be an independent contractor; “no” answers make it more likely you should be designated as an employee:

• Do you supply the materials, tools, and/or place of work? • Does your occupation require a lot of skill? Is it usually done without supervision? • Are you employed for a short amount of time? • Are you paid by the job? (as opposed to payment by the hour, week, or year) • Is your work outside the regular business that is paying you? (For example, a painter at a school is more likely to be an independent contractor than a teacher.) • Is there an opportunity for profit or loss depending on your managerial skill? • Do you believe you are creating an independent contractor relationship?

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