Americans with Disabilities Act Back to Top

The Americans with Disabilities Act (ADA) is a federal anti-discrimination law which prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. This law (covering employers with 15 or more employees) is designed to remove barriers, which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities. When an individual’s disability creates a barrier to employment opportunities, the ADA requires employers to consider whether a reasonable accommodation could remove the barrier.

Disability
An individual has a disability under ADA when one or more of the following are true:

• Have a physical or mental impairment that substantially limits one or more major life activities
• Have a record of such an impairment
• Are regarded as having such an impairment

Qualified Individual
A qualified individual is one who, with or without a reasonable accommodation, can perform the essential functions of a job.

Reasonable Accommodation
A reasonable accommodation is a modification of a job which will allow an individual with a disability to perform the job’s essential functions. An employer is required to make a reasonable accommodation to a known disability of a qualified applicant or employee.

A reasonable accommodation may include, but is not limited to:

• Making facilities used by employees readily accessible and usable by persons with disabilities
• Job restructuring
• Modifying work schedules
• Reassignment to a vacant position
• Acquiring or modifying equipment or devices
• Adjusting or modifying examinations, training materials, or policies
• Providing qualified sign language interpreters

A reasonable accommodation does not include lower production and quality standards. In addition, the employer does not need to provide an accommodation that would impose an “undue hardship” on the business. For more information, call the Job Accommodation Network at 800-526-7234 or www.jan.wvu.edu.

Penalties for Noncompliance
The Act is enforced by the Equal Employment Opportunity Commission and the penalties are the same as for violations of Title VII of the Civil Rights Act with maximum amounts for intentional discrimination mandated by the Civil Rights Act of 1991.

Age Discrimination in Employment Act Back to Top

The Age Discrimination in Employment Act of 1967 (ADEA) protects workers age 40 and over by prohibiting discrimination against workers 40 and over in any employment or employment-related decision. The Act applies to most employers with 20 or more employees. One of the main provisions of the Act is that employers, with very few exceptions, can no longer force an employee to retire. Voluntary retirements are allowed, however, very specific conditions must be met in order to avoid violation of the Act.

Penalties for Noncompliance
Employees may be awarded back pay, reinstatement, retroactive seniority, and attorney’s fees. Liquidated damages equal to the amount of back pay may be awarded if the violation is willful.

COBRA Back to Top

COBRA is a popular name of the Consolidated Omnibus Budget Reconciliation Act of 1985. The Act mandates that employers (with more than 20 employees on 50 percent of the business days of the previous year) continue health care coverage for employees enrolled in the benefit plan for a certain number of months (usually 18) after they suffer a loss of health care benefits. The loss of benefits is usually caused by termination of employment or a reduction in hours that makes employees ineligible for the benefit plan. All persons covered by a plan, including spouses and children, for example, are eligible for COBRA.

The employee pays health care continuation coverage premiums in full and the employer may charge the employee two percent of the premium for administrative costs. The Act mandates the length of time employees has to elect COBRA benefits, response time for employers, and what notices must be provided..

Penalties for Noncompliance
Under ERISA, the penalty for failure to provide notice is $100 per day per violation until notice is provided to employees or beneficiaries. Under the Internal Revenue Code the penalty is an excise tax of $100 per day per violation for each qualified beneficiary during the non-compliance period. A qualified beneficiary who did not receive coverage can bring a lawsuit against the employer.

Consumer Credit Protection Act Back to Top

The Consumer Credit Protection Act prohibits employees from being terminated for garnishments for any one indebtedness. Although two or more garnishments do allow an employer to terminate, care should be exercised to prevent disparate impact if the employees being terminated are mostly women and minorities. Employers who have a business need to evaluate and monitor employee credit problems and who use credit reports to do so should also be aware of the Fair Credit Reporting Act..

Penalties for Noncompliance
A fine of up to $1,000, one-year imprisonment, or both, and actual damages, punitive damages, and attorney’s fees.

ERISA Back to Top

The Employee Retirement Income Security Act of 1974 (ERISA) sets requirements for the provision and administration of employee benefit plans. Employee benefit plans include health care benefits, profit sharing, and pension plans, for example. ERISA requires companies that meet certain criteria to file a form (Form 5500) annually with the Internal Revenue Service that discloses basic information about each benefit plan, such as plan expenses, income, assets, and liabilities. ERISA also requires employers to submit an annual Summary Report to plan participants and beneficiaries. In addition, ERISA requires that all new plan participants receive a summary plan description (SPD) no later than 90-days after becoming covered. Plan participants must be provided SPD’s within 30 days of a request for the document.

Penalties for Noncompliance
The IRS and the Department of Labor jointly enforce ERISA requirements. Willful violations result in criminal and civil penalties..

Employee Polygraph Protection Act Back to Top

The Employee Polygraph Protection Act prohibits most private employers from requiring employees or candidates for employment to submit to a lie detector test. The only time an employer may ask (but not require) an employee to take a polygraph test is in the conduct of an on-going investigation into theft, embezzlement, or a similar economic loss, or if the employee has a reasonable suspicion that the employee was involved. Employees who take a polygraph test may not be discharged or suffer any other negative consequences solely on the basis of the test without other supporting evidence. The Act strictly mandates how polygraph tests may be administered and how the results are used.

Penalties for Noncompliance
Up to $10,000 in civil penalties; aggrieved candidates for employment may obtain employment; aggrieved employees may be awarded reinstatement, back pay, and benefits..

Equal Pay Act Back to Top

The Equal Pay Act is an amendment to the Fair Labor Standards Act which prohibits employers from discriminating between men and women by paying one gender more than the other “for equal work on the jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

Penalties for Noncompliance
Back pay for up to two years, or three years if the violation was willful and liquidated damages in an amount equal to back pay.

Executive Order 11246 Back to Top

This Executive Order prohibits federal contractors from discriminating against employees on the basis of race, color, religion, gender, or national origin. It is similar to the Civil Rights Act, but has the further requirement that federal contractors with contracts exceeding $50,000 and a workforce of more than 50 employees maintain an Affirmative Action Plan regarding the utilization of people in the protected class.

Penalties for Noncompliance
The Office of Federal Contract Compliance Programs may suspend, terminate, or cancel the employer’s contract and declare them ineligible to compete for future federal contracts.

Fair Credit Reporting Act (FCRA) Back to Top

The Fair Credit Reporting Act of 1970 requires employers who deny employment on the basis of a credit report to so notify the applicant and to provide the name and address of the consumer-reporting agency used. The Consumer Credit Reporting Reform Act of 1996 makes major modifications to the FCRA including the requirement that companies who use consumer credit reports or investigative consumer reports provide a separate written disclosure to applicants or employees of their intentions, obtain written authorization from applicants or employees to obtain the report, and certify to the credit reporting agency that appropriate procedures have been followed. Users of detailed investigative consumer reports have additional disclosure responsibilities.

Additionally, employers who take adverse action against any employee or applicant that is in any way related to consumer report information must notify the individual (via oral, written, or electronic means) of the adverse action taken, the name, address, and phone number of the agency used, as well as a statement that the adverse action was not made by the reporting agency and that they will be unable to explain the reason behind the decision.

Penalties for Noncompliance
Actual damages, costs, and attorney’s fees; additional punitive damages for willful non-compliance; actual damages, fines of at least $1,000 plus imprisonment up to two years for obtaining a report under false pretenses.

Fair Labor Standards Act Back to Top

Most employers are covered by the Fair Labor Standards Act (FLSA). The Act covers public agencies and businesses engaged in interstate commerce or providing goods and services for commerce. The FLSA provides guidelines on employment status, child labor, minimum wage, overtime pay, and record-keeping requirements. It determines which employees are exempt from the Act (not covered by the Act) and which are non-exempt (covered by the Act). It establishes age and time requirements when minors can work. It sets the minimum wage that must be paid and mandates when overtime must be paid.

The Minimum Wage
Effective September 1, 1997, the federal minimum wage is $5.15 per hour. The minimum wage is subject to review by the Federal government and may be changed from time to time.
(NOTE: Many states have higher minimum wage provisions which supercede the FLSA.).

Overtime
Employees covered by the FLSA must be paid at least one and one half times their regular rate for all hours worked in excess of 40 in a week (seven consecutive days). The regular rate of pay must be determined to calculate overtime pay and it includes the base rate, bonuses, commission, piece rates, incentives, shift differentials, and training pay.

The regular rate of pay excludes premium pay under a union contract for Saturdays, Sundays, and holiday pay for time not worked (i.e., vacation, sick time, holidays); contributions to pension and insurance plans; gifts employer discretionary bonuses; distributions from profit sharing plans that meet Wage and Hour regulations; contributions to bona fide thrift and savings plans; and longevity plans..

Test for Exemption from Overtime Provisions of the FLSA
Executives are exempt from the Act:

• Whose primary duty is managing an enterprise of customarily recognized department or subdivision
• Who customarily and regularly direct the work of two or more employees
• Who has the authority to hire or fire other employees
• Who customarily and regularly exercises discretionary powers
• Who does not devote more than 20 percent of work time to non-exempt work
• Who is compensated for services on a salary basis at a rate of not less than $155 per week

Administrative Personnel are exempt from the Act:
Whose primary duty consists of:

• performance of office or non-manual work directly related to management policies or general business operations or
• administration of a school system
• Who customarily and regularly exercises discretion and independent judgment
• Who regularly and directly assists a proprietor, a bona fide executive, or administrative employee
• Who performs work under only general supervision along specialized or technical lines
• Who does not devote more than 20 percent of work time to non-exempt work
• Who is compensated for services on a salary or fee basis of not less than $155 per week

Professionals are exempt from the Act:
Whose primary duties consist of the performance of:

• work requiring knowledge of an advanced type in a field of science or learning
• work that is original and creative in character
• teaching, tutoring, or instructing
• Whose work requires consistent exercise of discretion and judgment in its performance
• Whose work is predominantly intellectual and varied in character
• Who does not devote more than 20 percent of work time to non-exempt work
• Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week

Outside Sales people are exempt from the Act:

• Who customarily and regularly works away from the employer’s premises in making sales or obtaining orders or contracts
• Whose work other than making outside sales or obtaining orders or contracts for service cannot exceed 20 percent of the hours worked in a workweek by non-exempt employees

Computer related occupations are exempt from the Act:
Whose primary duties consist of:

• work requiring knowledge of an advanced type in a field of science or learning
• work that is original and creative in character
• teaching, tutoring, or instructing
• If compensated on a salary or fee basis at the rate of at least $27.63 per hour

FLSA Record keeping Requirements
NOTE: State requirements may be stricter.

• Name, address, date of birth if under 19
• Day and hour on which the work week begins
• Number of hours worked each day and total number of hours worked each week
• Inclusions and exclusions from regular rate of pay
• Total daily or weekly straight time earnings
• Total overtime earnings
• Total deductions from earnings
• Total wage each period
• Date of payment, amount, and period included in payment

Hours of Work
All time spent in an employee’s principal duties and all essential ancillary activities must be counted as work time. Principal duties include productive tasks. Work time is compensable if expended for the employer’s benefit, if controlled by the employer, or if allowed by the employer. Activities which occur before or after an employee’s principal duties need not be counted as work time. Some examples:

Clothes Changing and Washing
Not compensated unless done at the work place at the employer’s request or because of the nature of the principal duties, such as handling toxic chemicals. May be subject to a collective bargaining agreement.

Travel Time
Travel to and from work is not generally compensable. Travel in the course of the day, such as from one job site to another, is compensable work time. Travel out of town may be compensable depending on when it occurs and whether the trip is overnight.

Meal Periods and Breaks
Meal periods are not compensable if they last for more than half an hour if the employee is relieved of all duties and if the employee is free to leave the work place. Breaks of 15 minutes or less are considered work time and are compensable.

Test for Exemption from Overtime Provisions of the FLSA
Executives are exempt from the Act:

Training Time
Training is not considered work time if all these conditions are met:

• It is outside of regular work hours
• Attendance is in fact voluntary
• No product work is performed there
• The training is not directed toward making the employee more proficient in his or her present job

Child Labor
The FLSA prohibits the employment of oppressive child labor and regulates the hours which children may permissibly work. The requirements become stricter as the age decreases. Children are divided into three groups: 16 and 17 year olds, 14 and 15 year olds, and all younger children, for regulatory purposes. The hours that they may work and the occupations at which they may work vary from group to group. Anyone under age 18 is considered a child. States frequently regulate the employment of minors and the requirements vary from state to state.

Penalties for Noncompliance
The Department of Labor administers the Fair Labor Standards Act. Employers who willfully or repeatedly violate the Act may be penalized up to $1,000 per violation.

Family and Medical Leave Act (FMLA) Back to Top

The Family and Medical Leave Act (FMLA) allows employees who have met minimum service requirements (12 months employed by the company with 1,250 hours of service in the preceding 12 months) to take up to 12 weeks of unpaid leave for:

• A serious health condition
• To care for a family member with a serious health condition
• The birth of a child
• The placement of a child for adoption or foster care

Although there is no complete list of medical conditions which are considered serious health conditions, there are six general categories which must be evaluated to determine if an employee (or their family member) has a serious health condition. This determination is made by the employee’s (or family member’s) doctor on the Certification of Health Care Provider form. Reasons #3 and #4 are considered family leave, therefore there is no medical issue attached to the request for leave and the certification form does not need to be completed, although the employee must usually provide at least 30 days advance notice before the leave is to begin.

The FMLA requires employers to:

• Allow their eligible employees to take up to 12 weeks of unpaid leave for the above circumstances
• Provide continued health benefits during leave
• Restore employees to the same position upon return from leave (or to a position with the same pay, benefits, and terms and conditions of employment)
• Appropriately notify employees of their rights and responsibilities under the Act

Scheduling
Employees can take 12 weeks of leave in:

• One block of time
• In small blocks as needed (intermittent leave)
• On a reduced work schedule (i.e., part time for 24 weeks)

Managers may need to rearrange the duties of other workers or hire a temporary worker to cover the responsibilities of a worker on FMLA leave. With few exceptions, it is important not to interfere with an employee’s right to use FMLA leave and be reinstated upon completion of the leave. The employer can expect reasonable notice and may exercise some control in cases of intermittent or reduced work schedule leave, however.

Recording FMLA Leave
It is the employer’s responsibility to designate leave as FMLA leave, whether the employee mentions FMLA or not. The employee must be promptly notified that leave will be counted as FMLA leave to limit the total amount of time the employee can be away from work. The employee has the responsibility to notify the employer of the need for leave and to provide enough information so the employer can determine if the leave qualifies under FMLA.

Reinstatement
When an employee is ready to return from leave, as long as it has not exceeded the 12-week FMLA maximum, he or she must be restored to an equivalent position with equivalent pay, benefits, and terms and conditions of employment (such as work schedule, eligibility for promotions, bonuses, etc.) In most cases, therefore, employers will restore the employee to his or her original position.

Penalties for Noncompliance
Employees may recover back pay and benefits with interest, as well as reinstatement and/or promotion. Attorney’s fees and costs may also be awarded.

In the absence of FMLA, state family and medical leave laws and state temporary disability requirements, small companies have several options:

• Provide no paid leave or guarantee of reinstatement following absence for family for medical reasons
• Provide paid leave for medically necessary absences only (pregnancy must be treated like any other medical absence)
• Provide unpaid maternity/paternity leave
• Some combination of the above

Health Insurance Portability and Accountability Act (HIPAA) Back to Top

The Immigration Reform and Control Act (IRCA) prohibits the employment of individuals who are not legally authorized to work in the United States or in an employment classification that they are not authorized to fill. The IRCA requires employers to certify (using the I-9 form) within three days of employment the identity and eligibility to work of all employees hired. I-9 forms must be retained for three years following employment or one year following termination, whichever is later.

The IRCA also prohibits discrimination in employment-related matters on the basis of national origin or citizenship. Discriminatory actions include, but are not limited to, requesting additional documents beyond those required, refusing to accept valid documents or consider an applicant who is suspected of being an illegal alien or harassing or retaliating against employees for exercising their rights under the law.

Penalties for Noncompliance
Civil fines of $100 to $10,000 per violation for record keeping and employment violations. Back pay/front pay and attorney’s fees for discriminatory actions. Criminal penalties may be imposed for repeated violations.

Immigration Reform and Control Act Back to Top

The Immigration Reform and Control Act (IRCA) prohibits the employment of individuals who are not legally authorized to work in the United States or in an employment classification that they are not authorized to fill. The IRCA requires employers to certify (using the I-9 form) within three days of employment the identity and eligibility to work of all employees hired. I-9 forms must be retained for three years following employment or one year following termination, whichever is later.

The IRCA also prohibits discrimination in employment-related matters on the basis of national origin or citizenship. Discriminatory actions include, but are not limited to, requesting additional documents beyond those required, refusing to accept valid documents or consider an applicant who is suspected of being an illegal alien or harassing or retaliating against employees for exercising their rights under the law.

Penalties for Noncompliance
Civil fines of $100 to $10,000 per violation for record keeping and employment violations. Back pay/front pay and attorney’s fees for discriminatory actions. Criminal penalties may be imposed for repeated violations.

National Labor Relations Act Back to Top

The National Labor Relations Act (NLRA), passed in 1935, provides that all employees have the right to form, join, and assist labor organizations and to bargain collectively with their employers. The National Labor Relations Board enforces the Act and the body of decisions and regulations from the Board have formed an extensive set of standards for electing and decertifying unions, for negotiating bargaining agreements, and for defining activities as fair or unfair labor practices.

Penalties for Noncompliance
The National Labor Relations Board addresses violations of the Act and a wide variety of penalties may be applied, depending on the type of violation.

New Hire Reporting Provisions of the Personal Responsibility and Work Opportunity Act (Welfare Reform) Back to Top

Effective October 1, 1997, the new hire reporting provisions require states to establish directories of new hires for tracking child support evaders. Although state laws may impose additional requirements, including shorter time periods for reporting, federal law requires employers to report the name, address, and social security number (along with name, address, and tax ID number of the employer) of all new hires to the designated state agency within 20 days. Such reports may be in the form of a copy of the W-4 or the equivalent and can be transmitted magnetically, electronically, or via first class mail. Multi-state employers may officially designate one state to whom they will report.

Penalties for Noncompliance
States may establish their own penalties to a federal maximum of $25 per new hire unless such non-compliance is the result of a conspiracy between employee and employer, in which case the maximum fine is $500 per new hire.

Occupational Safety and Health Act Back to Top

The Occupational Safety and Health Act of 1970 (OSHA) includes a “general duty clause” that requires virtually all employers to maintain a workplace that is free from recognized hazards that would cause injury or death to employees. Most employers must comply with OSHA workplace safety and health standards that apply to their workplaces. OSHA requires employers to maintain a log of certain injuries and illnesses, report certain deaths and multiple hospitalizations, and post supplementary records on an annual basis. Employers may not discharge employees who refuse to do a job that, by their reasonable apprehension, places them at risk of injury or exposes them to a hazardous workplace condition. The standards are voluminous and may be obtained from the Government Printing Office.

Penalties for Noncompliance
Civil penalties up to $1,000 for individual violations; up to $10,000 for repeated and willful violations; back pay and reinstatement for employees who suffered discrimination.

Pennsylvania Human Relations Act Back to Top

The purpose of the Pennsylvania Human Relations Act is to prevent and eliminate unlawful discriminatory practices in employment because of race, color, religion, ancestry, age (40 and above), sex, national origin, non-job related handicap or disability, known association with a handicapped or disabled individual, possession of a diploma based on passing a general education development test, or willingness or refusal to participate in abortion or sterilization.

The Act applies to employers of four or more people, including units of state and local government, labor organizations, and employment agencies.

According to the Act, it is unlawful for an employer, labor union or employment agency to:

• Deny any person an equal opportunity to obtain employment, to be promoted, and to be accorded all other rights to compensation, tenure, and other terms, conditions, and privileges of employment
• Deny membership rights and privileges in any labor organization
• Deny any person equal opportunity to be referred for employment
• Refuse to contract or otherwise discriminate in contracting with any independent contractor who is licensed by the Bureau of Professional and Occupational Affairs

It is also unlawful for any person, employer, labor union, or employment agency to retaliate against an individual because the individual has filed a compliant with the Pennsylvania Human Relations Commission, or has otherwise participated in any Pennsylvania Human Relations Commission proceeding, or for any person to aid or abet any unlawful discriminatory practice under the Human Relations Act.

The provisions of this Act do not apply to any individual employed in agriculture or domestic service, any individual who resides in the personal residence of the employer as part of their employment, or any individual employed by his or her parents, spouse, or child.

Pennsylvania Minimum Wage Act Back to Top

The Pennsylvania Minimum Wage Act establishes a fixed minimum wage and overtime rate for employees with certain exceptions. It also sets forth compliance-related duties of the Department of Labor and Industry and of employers. In addition, the Act provides penalties for non-compliance. Employers must maintain an accurate record of each employee’s earnings and hours worked.

The Act establishes the minimum wage of $5.15 per hour effective September 1, 1997. The Act also establishes that in determining the hourly wage of a tipped employee (one who makes $30.00 a month in tips) an employer may take a tip credit not to exceed 45 percent. Overtime must also be paid at one and one half times the regular rate of pay after 40 hours worked in a week.

The following positions are exempt from the overtime rate:

• Seaman
• Any salesman, partsman, or mechanic primarily engaged in selling and servicing automobiles, trailers, trucks, farm implements, or aircraft, if employed by a non-manufacturing establishment primarily engaged in the selling of such vehicles to ultimate purchasers
• Driver of a taxicab
• Announcer, news editor, chief engineer of a radio or television station, the major studio of which is located in :
  • city or town of 100,000 population or less, provided it is not part of a standard metropolitan statistical area having a total population in excess of 100,000
  • city or town of 25,000 population or less, which is part of such an area but is at least 40 airline miles from the principal city in the area
• Any employee engaged in the processing of maple sap into sugar (other than refined sugar) or syrup
• Employment by an establishment which is a motion picture theatre
• Any employee of a motor carrier with respect to whom the Federal Secretary of Transportation has power to establish qualifications and maximum hours of service under 49 U.S.C. 3102(b)(1) and (2) (relating to requirements for qualifications, hours of service, safety, and equipment standards)

The Act provides special allowances for students, learners, and people with disabilities upon application.

Learners and students (bona fide high school or college), after obtaining a Special Certificate from the Secretary of Labor and Industry through the Bureau of Labor Law Compliance, may be paid 85% of the minimum wage as follows:

Learners: 40 hours a week (maximum eight weeks)

Students: Up to 20 hours a week. Up to 40 hours a week during school vacation periods

Individuals with a physical or mental deficiency or an injury may be paid less than the applicable minimum wage if a license specifying a rate commensurate with productive capacity is obtained from the Secretary of Labor and Industry through the Bureau of Labor Law Compliance or a Federal certificate is obtained under Section 14 (c) of the FLSA from the U.S. Department of Labor.

Penalties for Noncompliance
Failure to pay the statutory minimum wage and overtime compensations results in cumulative back wage liabilities. Violation of the law may result in civil and/or criminal action.

Small Business Job Protection Act Back to Top

The Small Business Job Protection Act (SBJPA) of 1996 includes provisions related to the Fair Labor Standards Act, educational assistance, the Work Opportunity Tax Act, pension plans, and other requirements. To the extent possible, the relevant provisions will be discussed in the corresponding sections of this booklet.

Title VII Back to Top

Title VII is a provision of the Civil Rights Act of 1964 which prohibits discrimination in virtually every employment circumstance on the basis of race, color, religion, gender, pregnancy, or national origin. In general, Title VII applies to employers with 15 or more employees. The purpose of Title VII’s protections is to “level the playing field” by forcing employers to consider only objective, job-related criteria in making employment decisions. The above classes of individuals are considered “protected” under Title VII because of the history of unequal treatment which has been identified in each class. Title VII must be considered when reviewing applications or résumés (i.e., by not eliminating candidates on the basis of a “foreign” last name), when interviewing candidates (i.e., by asking only job-related questions), when testing job applicants (i.e., by treating all candidates the same and ensuring that tests are not unfairly weighted against any group of people), and when considering employees for promotions, transfers, or any other employment-related benefit or condition.

The Pregnancy Discrimination Act of 1978 amended Title VII to provide that pregnant women are treated the same as other employees who are disabled. The employer’s policies for taking leave, health benefits during leaves, and reinstatement after leave applies equally to pregnant women and other employees. See also the Family and Medical Leave Act.

Sexual Harassment
Sexual harassment is prohibited under Title VII of the Civil Rights Act. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting an individual
• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

Whenever sexual harassment is claimed or suspected in the workplace, it should be promptly and thoroughly investigated. Ignoring and/or ignorance of its occurrence within the workplace do not alleviate the company’s liability. Sexual harassment claims can cost a company millions of dollars.

Sexual harassment is prohibited by the Civil Rights Act and the same penalties for non-compliance apply.

Penalties for Noncompliance
For intentional discrimination, employees may see a jury trial with compensatory and punitive damages up to the maximum limitations established by the Civil Rights Act of 1991 according to the employer’s number of employees:

• 15 – 100 employees – a maximum of $50,000
• 101 – 200 employees – a maximum of $100,000
• 201 – 500 employees – a maximum of $200,000
• over 500 employees – a maximum of $300,000

Remedies of back pay, reinstatement, and retroactive seniority are available for all types of discrimination, whether intentional or disparate impact.

Uniform Guidelines on Employee Selection Procedures Back to Top