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An employee policy on equal employment opportunities (EEO). It prohibits discrimination and retaliation and outlines the procedure for reporting complaints. It can be incorporated into an employment handbook or used as a stand-alone policy document. This Standard Document applies only to private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.
Several federal statutes prohibit discrimination in employment and require employers to provide equal employment opportunities to employees, applicants and other covered individuals, including:
Title VII of the Civil Rights Act of 1964 (www.practicallaw.com/0-501-7062) (Title VII), which prohibits discrimination on the basis of race, color, religion, sex (including pregnancy, gender and gender nonconformity) and national origin (42 U.S.C. § 2000e).
The Americans with Disabilities Act of 1990 (www.practicallaw.com/7-501-9331) (ADA), which prohibits discrimination on the basis of disability (www.practicallaw.com/5-501-9332) (42 U.S.C. §§ 12101-13).
The Age Discrimination in Employment Act of 1967 (www.practicallaw.com/2-501-7061) (ADEA), which prohibits discrimination against individuals aged 40 and over on the basis of their age (29 U.S.C. §§ 621-34).
The Genetic Information Nondiscrimination Act of 2008 (www.practicallaw.com/1-501-8645) (GINA), which prohibits discrimination on the basis of genetic information (42 U.S.C. § 2000ff).
The Uniformed Services Employment Reemployment Rights Act of 1994 (www.practicallaw.com/5-502-5644) (USERRA), which prohibits discrimination on the basis of past, current or prospective service in the uniformed services (www.practicallaw.com/1-504-1919) (38 USC § 4311).
Section 1981 of the Civil Rights Act of 1866 (www.practicallaw.com/5-503-7944) (Section 1981), which prohibits discrimination on the basis of race, color and ethnicity (42 U.S.C. § 1981).
The Equal Pay Act of 1963 (www.practicallaw.com/1-502-4731) (EPA), which prohibits sex-based wage discrimination against men or women performing substantially equal work in the same establishment (29 U.S.C. § 206(d)).
The Immigration Reform and Control Act of 1986 (www.practicallaw.com/7-504-5735) (IRCA), which prohibits citizenship discrimination, national origin discrimination by certain employers and over-documentation in the employment eligibility verification process (Pub. L. 99-603, 100 Stat. 3359 (1986), as codified as amended in scattered sections of 8 U.S.C.).
For more information, see Practice Notes:
Discrimination is also prohibited by many state and local laws. For more information, see Anti-discrimination Laws: State Q&A Tool (www.practicallaw.com/0-505-9580).
Although not legally required under federal law, best practice for private employers is to implement and maintain an equal employment opportunity (EEO) policy to:
Demonstrate the employer's commitment to:
providing equal employment opportunities; and
complying with various federal, state and local anti-discrimination laws.
Assure employees that the employer is an equal opportunity employer and that unlawful discrimination is not tolerated.
Encourage resolution of issues before they become legal claims by providing an internal mechanism for employees to report discrimination they are experiencing or have witnessed.
To encourage resolution of problems before they become legal claims, a properly drafted and enforced EEO policy should include a complaint procedure that:
Encourages employees to report discrimination.
Requires that employees report discrimination using a specific procedure.
Informs employees that discrimination complaints will be promptly investigated.
States that the employer will promptly take any appropriate corrective action to stop the discrimination.
For more information, see Drafting Note, Complaint Procedure.
This Standard Document outlines a private employer's EEO policy and prohibits discrimination. It also outlines the procedure for reporting complaints and prohibits retaliation. It can be incorporated into an employee handbook or used as a stand-alone policy document.
In addition to EEO policies, many employers also adopt and maintain policies that prohibit harassment and retaliation and specifically address reasonable accommodations. For model policies, see Standard Documents:
Although outside the scope of this Standard Document, most federal contractors and subcontractors must comply with EEO and affirmative action (www.practicallaw.com/9-507-0267) obligations set out in:
Similarly, state and local government contractors may have EEO and affirmative action obligations under state and local law.
Covered employers may need to tailor their EEO policy, as well as adopt affirmative action programs, to comply with these laws and their implementing regulations. For more information, see Practice Note, Affirmative Action: Overview (www.practicallaw.com/3-506-4783).
Both unionized (www.practicallaw.com/2-502-9592) and nonunionized employers must ensure that they comply with the National Labor Relations Act (www.practicallaw.com/2-382-3640) (NLRA) when developing and implementing policies. For information about compliance with the NLRA, see Practice Note, Employee Handbooks: Best Practices: Compliance with the National Labor Relations Act (www.practicallaw.com/4-513-9448).
[EMPLOYER NAME] is an equal opportunity employer and complies with all applicable federal, state and local fair employment practices laws. [EMPLOYER NAME] strictly prohibits and does not tolerate discrimination against employees, applicants or any other covered persons because of race, color, religion, creed, national origin or ancestry, ethnicity, sex, gender (including gender nonconformity and status as a transgender or transsexual individual), age, physical or mental disability, citizenship, past, current or prospective service in the uniformed services, genetic information, [OTHER PROTECTED CLASSES RECOGNIZED BY APPLICABLE STATE OR LOCAL LAW] or any other characteristic protected under applicable federal, state or local law. All [EMPLOYER NAME] employees, other workers and representatives are prohibited from engaging in unlawful discrimination. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, training, promotion, discipline, compensation, benefits and termination of employment.
[EMPLOYER NAME] complies with the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act, and all applicable state or local law. Consistent with those requirements, [EMPLOYER NAME] will reasonably accommodate qualified individuals with a disability if such accommodation would allow the individual to perform the essential functions of the job, unless doing so would create an undue hardship. If you believe you need an accommodation, [refer any such request to [DEPARTMENT NAME] Department/please make a request under [EMPLOYER NAME]'s [DISABILITY ACCOMMODATIONS POLICY]]. [EMPLOYER NAME] will also, where appropriate, provide reasonable accommodations for an employee's religious beliefs or practices.
This equal opportunity employer provision prohibits discrimination on the basis of an individual's membership in protected classes (www.practicallaw.com/5-501-5857) under:
Employers who are covered by some, but not all, of these laws should consider tailoring the list of protected classes identified above to correspond to the laws that apply to them. For more information on thresholds for coverage under federal anti-discrimination laws, see Federal Employment Anti-Discrimination Laws Checklist (www.practicallaw.com/5-500-4793).
State and local laws may recognize additional protected classes (for more information, see Anti-discrimination Laws: State Q&A Tool: Question 1 (www.practicallaw.com/0-505-9580)). Best practice is for employers to specifically identify all protected classes in the relevant jurisdictions, and employers may be required to do so in certain jurisdictions. For example, additional protected classes may include:
Marital status or change in marital status.
Domestic partnership or civil union status.
Sickle cell traits.
Hemoglobin C traits.
AIDS or HIV status.
Military discharge status.
Status as a victim of sexual or domestic abuse.
Use of lawful products while not at work, such as tobacco.
Receipt of public assistance.
For more information on state laws, see Anti-discrimination Laws: State Q&A Tool (www.practicallaw.com/0-505-9580).
Title VII and the ADA each require employers to provide reasonable accommodations for religion and disabilities, respectively, under certain circumstances. Best practice is for covered employers to maintain a policy demonstrating compliance with these laws. For a model policy on disability accommodation, see Standard Document, Disability Accommodations Policy (www.practicallaw.com/9-513-5457).
Additionally, state and local law may impose more rigorous standards for providing reasonable accommodations and may apply to employers who are not otherwise covered by federal law. For more information, see Anti-discrimination Laws: State Q&A Tool (www.practicallaw.com/0-505-9580).
Although most federal anti-discrimination laws apply only to employees, Section 1981 prohibits discrimination on the basis of race, color and ethnicity and applies equally to independent contractors. Additionally, some states explicitly prohibit discrimination against independent contractors (for example, California). For more information, see Practice Note, Discrimination: Overview (www.practicallaw.com/3-503-3975) and Anti-discrimination Laws: State Q&A Tool (www.practicallaw.com/0-505-9580).
If you are subjected to any conduct that you believe violates this policy, you must promptly speak to, write or otherwise contact your direct supervisor or, if the conduct involves your direct supervisor, the [next level above your direct supervisor/[DEPARTMENT NAME] Department], ideally within [ten (10)/[NUMBER]] days of the offending conduct. If you have not received a satisfactory response within [five (5)/[NUMBER]] days after reporting any incident of what you perceive to be discriminatory conduct, please immediately contact [[POSITION]/[DEPARTMENT NAME] Department]. These individuals will ensure that a prompt investigation is conducted. [Although not mandatory, a Complaint Form is available at [LOCATION] to make your complaint if you wish to use it.]
Your complaint should be as detailed as possible, including the names of all individuals involved and any witnesses. [EMPLOYER NAME] will directly and thoroughly investigate the facts and circumstances of all claims of perceived discrimination and will take prompt corrective action, if appropriate.
Additionally, any manager or supervisor who observes discriminatory conduct must report the conduct to [[POSITION]/[DEPARTMENT NAME] Department] so that an investigation can be made and corrective action taken, if appropriate.
It is essential to encourage employees to report discrimination as soon as possible so that any incident of it can be promptly investigated and addressed. Employers that encourage employees to report discrimination can more likely resolve the incident internally and avoid related litigation. If litigation does ensue, an employer's prompt investigation and efforts to address the situation effectively may reflect favorably on the employer.
A complaint procedure should include at least two points of contact for complaints so that employees:
Do not have to report wrongful conduct to the person who is engaged in or causing the offending conduct.
Are more likely to feel comfortable reporting the offending conduct.
Although it is useful to provide a broad outline of a complaint procedure as part of an EEO policy, this policy is only as useful as the employer's adherence to it. Employees who will be handling internal complaints (for example, human resources professionals) should be trained on proper responsive techniques, including document preparation, investigation and follow up. For more information about best practices for conducting internal investigations, see Conducting Internal Investigations Toolkit (www.practicallaw.com/2-502-1874) and Preventing and Responding to Discrimination Complaints Checklist (www.practicallaw.com/5-500-1450).
No one will be subject to, and [EMPLOYER NAME] prohibits, any form of discipline, reprisal, intimidation or retaliation for good faith reporting of incidents of discrimination of any kind, pursuing any discrimination claim or cooperating in related investigations. [For more information on [EMPLOYER NAME]'s policy prohibiting retaliation, please refer to [EMPLOYER NAME]'s Anti-retaliation Policy or contact the [DEPARTMENT NAME] Department.]
[EMPLOYER NAME] is committed to enforcing this policy against all forms of discrimination. However, the effectiveness of our efforts depends largely on employees telling us about inappropriate workplace conduct. If employees feel that they or someone else may have been subjected to conduct that violates this policy, they should report it immediately. If employees do not report discriminatory conduct, [EMPLOYER NAME] may not become aware of a possible violation of this policy and may not be able to take appropriate corrective action.
Employees should be reminded that unlawful retaliation of any kind, including for making a good faith complaint of discrimination, is strictly prohibited. Employers may also want to maintain a separate policy prohibiting retaliation (see Standard Document, Anti-retaliation Policy (www.practicallaw.com/8-503-5830)). For more information about retaliation generally, including how to prevent it and minimize legal exposure related to it, see Practice Note, Retaliation (www.practicallaw.com/5-501-1430).
Any employee, regardless of position or title, whom [[POSITION]/the [DEPARTMENT NAME] Department] determines has subjected an individual to discrimination or retaliation in violation of this policy will be subject to discipline, up to and including termination of employment.
The [DEPARTMENT NAME] Department is responsible for the administration of this policy. If you have any questions regarding this policy or questions about discrimination, accommodations or retaliation that are not addressed in this policy, please contact the [DEPARTMENT NAME] Department.
The employment details set out in this policy work in conjunction with, and do not replace, amend or supplement any terms or conditions of employment stated in any collective bargaining agreement that a union has with [EMPLOYER NAME]. Wherever employment details in this policy differ from the terms expressed in your union's collective bargaining agreement with [EMPLOYER NAME], you should refer to the specific terms of the collective bargaining agreement, which will control.]
Employers that make this policy applicable to a unionized workforce covered under a collective bargaining agreement (www.practicallaw.com/4-504-1300) (CBA) should consider adding a disclaimer that whenever policy provisions differ from CBA provisions, the CBA controls. This language minimizes the risk of:
Unfair labor practice (www.practicallaw.com/5-507-5808) (ULP) charges for unilaterally changing terms and conditions of employment through the policy.
Unintentionally promising in the policy to provide wages, benefits or other employment terms and conditions that exceed a CBA's terms.
Employers considering using this disclaimer for this policy may consider including a similar disclaimer applicable to their entire handbook (see Standard Clause, Employee Handbook Disclaimer for Unionized Employees Covered by a Collective Bargaining Agreement (www.practicallaw.com/4-517-5441)).
[This policy is not intended to preclude or dissuade employees from engaging in [legally protected activities/activities protected by state or federal law, including the National Labor Relations Act] such as discussing wages, benefits or terms and conditions of employment[, forming, joining or supporting labor unions] [, bargaining collectively through representatives of their choosing] [, raising complaints about working conditions for their and their fellow employees' mutual aid or protection] or legally required activities.
This policy is not intended to restrict communications or actions protected or required by state or federal law.]]
Employers should consider disclaiming an intent to interfere with employees' Section 7 rights (www.practicallaw.com/1-507-5768) in any policy that restricts employee communications or conduct. Such a disclaimer makes it less likely for an employee to understand that a policy prohibits Section 7 activity. This disclaimer has alternative language to suit employers' varying business needs and preferences.
The first alternative offers employers the opportunity to refer to the NLRA and selected Section 7 rights. This alternative language is more specific and provides the policy to which it is added comparatively greater protections against vagueness or overbreadth.
The second alternative should be considered only by employers that are:
Less concerned that the National Labor Relations Board (www.practicallaw.com/3-501-8649) (NLRB) would find their particular policy unlawfully vague or overbroad.
Reluctant to refer in a disclaimer to:
the NLRA; or
specific employee rights under the NLRA.
The second alternative does cover a broad range of employee rights and obligations generally, but is less likely to save a policy that the NLRB finds marginally vague or overbroad. The NLRB disfavors policy disclaimers that contain only general references to rights protected "by law" (see Ingram Book Co., 315 N.L.R.B. 515 (1994)).
Employers that select the first alternative should consider whether they prefer to publish a disclaimer that is either:
More concise, and therefore:
less likely to educate employees about either their particular rights under the NLRA or the grounds they might have for filing ULP charges against their employer;
less instructive about the scope of the restrictions in the policy; and
comparatively less likely to save a policy that the NLRB finds marginally vague or overbroad.
More expressive, and therefore:
more likely to educate employees about either their particular rights under the NLRA or the grounds they might have for filing ULP charges against their employer;
more instructive about the scope of the restrictions in the policy; and
comparatively more likely to save a policy that the NLRB finds marginally vague or overbroad.
These considerations should guide employers in choosing whether to select optional language that references:
More or fewer specific employee rights under the NLRA.
[I [EMPLOYEE NAME] acknowledge that on [DATE], I received a copy of [EMPLOYER NAME]’s Equal Employment Opportunity Policy and that I read it, understood it and agree to comply with it. I understand that [EMPLOYER NAME] has the maximum discretion permitted by law to interpret, administer, change, modify or delete this policy at any time[ with or without notice]. No statement or representation by a supervisor or manager or any other employee, whether oral or written, can supplement or modify this policy. Changes can only be made if approved in writing by [POSITION]. I also understand that any delay or failure by [EMPLOYER NAME] to enforce any work policy or rule will not constitute a waiver of [EMPLOYER NAME]’s right to do so in the future. I understand that neither this policy nor any other communication by a management representative or any other employee, whether oral or written, is intended to in any way create a contract of employment. I understand that, unless I have a written employment agreement signed by an authorized [EMPLOYER NAME] representative, I am employed at will and this policy does not modify my at-will employment status. If I have a written employment agreement signed by an authorized [EMPLOYER NAME] representative and this policy conflicts with the terms of my employment agreement, I understand that the terms of my employment agreement will prevail.
I, [EMPLOYEE NAME], acknowledge that on [DATE], I received and read a copy of the [EMPLOYER NAME]'s Equal Employment Opportunity Policy[, dated [EDITION DATE]] and understand that it is my responsibility to be familiar with and abide by its terms. [I understand that the information in this policy is intended to help [EMPLOYER NAME]'s employees to work together effectively on assigned job responsibilities.] This policy is not promissory and does not set terms or conditions of employment or create an employment contract.]
A signed acknowledgment of receipt, review and understanding of any employee policy minimizes the potential for employees to later claim ignorance of that policy as an excuse for non-compliance. Although an acknowledgment included at the end of an employee handbook allows an employer to use one acknowledgment for all policies contained in the handbook, an employer’s ability to prove acknowledgment of some policies is so important that employers sometimes choose to present them as stand-alone policies.
Before using this acknowledgment, employers should ensure their policies comply with applicable laws and do not violate or otherwise interfere with employees’ rights. For example, employers should not maintain or implement policies that interfere with employees’ Section 7 rights under the NLRA. For more information, see Standard Document, Stand-alone Policy Acknowledgment: Drafting Note: General (www.practicallaw.com/2-501-6702).
Employers using this policy as a stand-alone policy for their nonunionized employees should include the first alternative acknowledgment. However, employers using this policy as part of a larger handbook for nonunionized employees can use a single acknowledgment for the entire handbook (see Standard Document, Employee Handbook Acknowledgment (www.practicallaw.com/7-500-4363)).
Employers using this policy as a stand-alone policy for their unionized employees should include the second alternative acknowledgment. This alternative acknowledgment does not require a unionized employee to acknowledge the employer's right to modify or delete its provisions without notice or to terminate employment at will. The NLRB may consider those statements evidence of a violation of an employer's duty to bargain with the employee's union before making changes to terms or conditions of employment under Sections 8(d) and 8(a)(5) of the NLRA (see United Cerebral Palsy of New York City, 347 N.L.R.B. 603 (2006)).
Employers using this policy as part of a larger handbook applicable to unionized employees can use a single acknowledgment for the entire handbook (see Standard Document, Unionized Employee Handbook Acknowledgment (www.practicallaw.com/1-516-9286)).