June 13th, 2019
Labor FAQs – Equal Employment Opportunity
Q: How long must an employer maintain personnel records?
A: For the laws that are administered by the Equal Employment Opportunity Commission, which are Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act, records should be maintained for a minimum of one year. These include copies of disciplinary actions, performance appraisals and other memoranda concerning performance. Other statutes require employers to maintain records for a longer period of time, such as three years under the Fair Labor Standards Act.
Q: Do the laws of equal opportunity require preferences for hiring based upon any protected class status?
A: No, no preference is required and in fact to make decisions based upon such preferences violates the law. The only exceptions involve jobs where sex, age or religion is a bona-fide occupational qualification, or where there is a strong business necessity for the employer to consider protected class status, such as in certain health care or mental health environments.
Q: Does an employer create a risk of a discrimination case if it doesn’t treat everybody the same?
A: An employer is not required to treat everyone the same, rather, the employer must
(1) Have business reasons for the difference in treatment and
(2) be consistent in the application of those reasons. It has been our experience that usually the cause of discrimination disputes is the inconsistency in application of policy, rather than the underlying policy itself.
Q: When can you require employees to retire because they are just slowing down on the job too much?
A: Except for highly paid executives, there is no mandatory retirement age. Rather than focusing on age, employers should focus on performance, attendance, or behavior with all employees, including those in the protected age group, whose job performance is not meeting expectations. Do not make assumptions that a decline in performance or productivity is age related.
Q: Are employers required to “reasonably accommodate” pregnancy?
A: The Pregnancy Discrimination Act requires that pregnancy should be treated no less favorably than any other medical condition, but enhanced treatment for pregnant employees is neither required nor forbidden by the Act. The key is don’t think pregnancy. That is, if an employer provides enhanced benefits, leave time or other treatment for employees with other medical conditions, treat pregnancy the same. There are rare situations where pregnancy may be considered a disability under the Americans with Disabilities Act, which could create the requirement for reasonable accommodation.