Top 10 Legal Issues Facing Entrepreneurs in Pennsylvania

Topic 8: Compliance with Federal Discrimination Mandates

It is important for business leaders today to know of and how to comply with the major federal discrimination statutes, as well as the major employee leave laws. This portion of the handbook is dedicated to educate employers as to what federal laws govern their individual company and how to comply with those laws. The easiest way for business leaders to understand and comply with federal discrimination law is to break it down into categories of:

• What businesses must comply with the particular law
• What the particular law protects against
• What the employee must do to pursue an alleged violation.

Generally there are three main federal statutes governing employment discrimination in the United States. They are Title VII of the Civil Rights Acts of 1964¹; the Age Discrimination in Employment Act of 1967²; and the Americans with Disabilities Act of 1990³.

1. Title VII of the Civil Rights Act of 1964
What businesses must comply?
Title VII is only applicable to employers with 15 or more employees who work at least 20 weeks a year, labor unions or employment agencies.

What does it protect against?
Title VII basically makes it unlawful for an employer to fail or refuse to hire or discharge an individual or any way adversely affect his or her status as an employee on the basis of one of the five protected classes covered by the statute. The five protected classes covered by Title VII are:

1. Race
2. Color
3. Sex
4. Religion
5. National Origin

What happens if there is an alleged violation?
A person alleging a violation by an employer cannot just assert a claim in court, but rather has to file first a charge with the Pennsylvania Human Rights Commission (PHRC). Once a plaintiff files a charge with the PHRC (must be within 100 days of the alleged violation), that agency has exclusive jurisdiction for acting on the situation for the first 60 days. The plaintiff must also file a charge with the EEOC within 300 days of the alleged unlawful employment practice or within 30 days after receiving notice that the state and local agency has terminated the proceedings, whichever is earlier. After 180 days have passed from the filing of a charge with EEOC, the Plaintiff may demand a “right-to-sue letter” from the EEOC, or may elect the EEOC’s procedures to continue after the 180 day period, but retains the power to demand a right-to-sue letter at any time. After investigation, the EEOC will either: (1) fail to find a reasonable cause to believe a violation has occurred and issue a notice of dismissal; or (2) find reasonable cause, attempt conciliation; and, if that fails to resolve the matter and the EEOC does not file suit itself, ultimately issue a right-to-sue letter. The charging party must file suit within 90 days of the receipt of the notice of dismissal or the right-to-sue letter.

2. The Age Discrimination in Employment Act of 1967 (ADEA)

What businesses must comply?
The ADEA only is applicable to employers with 20 or more employees, employment agencies, and labor unions.

What does it protect against?
The ADEA basically makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise adversely affect his or her status as an employee because of a protected class under this statute. The protected class under the ADEA is discrimination on the basis of age. The person alleging age discrimination must be at least 40 years old and must allege that he or she was discriminated against in favor of someone younger.

What happens if there is an alleged violation?
The aggrieved employee may file suit without exhausting administrative remedies or waiting for a “right to sue letter.”

3. The Americans with Disabilities Act (ADA)

What businesses must comply?
The mandates of the ADA are only applied to employers who have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year and any agent of such person.

What does it protect against?
The ADA protects against discrimination against the qualified individual with a disability because of the disability of such individual, in regard to job application procedures, hiring, advancement, discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. In addition, it is unlawful for an employer to refuse or fail to provide “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability unless the employer can demonstrate that the accommodation would cause undue hardship. For an individual to assert a claim under the ADA, they must be within the protected class, which is to say they must show an actual present disability, a record of disability, or be regarded by the employer as disabled. Disability is defined under the act as “a mental or physical impairment that substantially limits a major life activity”. A qualified individual with a disability is defined as “an individual with a disability, who with or without reasonable accommodations can perform the essential functions of the job”.

What happens if there is an alleged violation?
A person alleging a violation by an employer cannot just assert a claim in court, but rather has to file first a charge with the Pennsylvania Human Rights Commission (PHRC). Once a plaintiff files a charge with the PHRC (must be within 100 days of the alleged violation), that agency has exclusive jurisdiction for acting on the situation for the first 60 days. The plaintiff must also file a charge with the EEOC within 300 days of the alleged unlawful employment practice or within 30 days after receiving notice that the state and local agency has terminated the proceedings, whichever is earlier. After 180 days have past from the filing of a charge with EEOC, the Plaintiff may demand a “right-to-sue letter” from the EEOC, or may elect the EEOC’s procedures to continue after the 180 day period, but retains the power to demand a right-to-sue letter at any time. After investigation, the EEOC will either: fail to find a reasonable cause to believe a violation has occurred and issue a notice of dismissal; or find reasonable cause, attempt conciliation; and, if that fails to resolve the matter and the EEOC does not file suit itself, ultimately issue a right-to-sue letter. The charging party must file suit within 90 days of the receipt of the notice of dismissal or the right-to-sue letter.

Conclusion
If an employer keeps the above in mind, namely which of the three major discrimination laws apply to their company, what is required under each, and what procedures a potential employee must exhaust in asserting a claim, the employer will be in the best position to effectuate compliance. The above outline should, therefore, be utilized as a quick guide to help employers navigate the seemingly complex field of federal discrimination law.

¹ 42 U.S.C. §§2000e-2000e-15.

² ADEA, 29 U.S.C. §§621 et seq.

³ ADA 42 U.S.C. §12101 et seq.

Topic 9: Compliance with Federal Employee Leave Law ›