EMPLOYMENTCONTRACTS

This article has been written by Saileena Bose pursuing Diploma in Labour, Employment and Industrial Laws for HR Managers and edited by Shashwat Kaushik.

Introduction

This is a timeline where we seek equality in everything, and that absolutely makes sense. Needless to say, we have reached this point after travelling through decades and centuries of discrimination, power play and manipulation. We have broken chains of restrictions and taboos, fought gruelling battles against violence on grounds of caste, religion and sex. When it comes to employment, it’s no exception that equality needs to exist. 

What is equal employment opportunity

Equal employment opportunity (EEO) stands for fairness  and non-discriminatory treatment of all employees and applicants. It requires the employer to treat all employees and job applicants equally, irrespective of their race, religion, colour,  age, gender, gender identity, disability, sexual orientation, or any other protected characteristic. Due to previous evidence of discrimination, certain characteristics have been classified as protected. In many countries, these characteristics include: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation

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EEO is not only a legal obligation for employers but also a strategic advantage that can enhance organisational performance, diversity and inclusion. In the eyes of the law, employers cannot allow biases against certain characteristics to hire or reject candidates or make other employment decisions, which include compensation and benefits, bonuses and incentives, work environment and conditions of employment, promotions/demotions and transfers, disciplinary measures, attendance and leave management, dressing and appearance. The only things that can influence their decision are the merits/ demerits, ability, work ethics, knowledge and skills of the employee/ potential employee.

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A brief history of how EEO came into existence

EEO laws and regulations were enacted during the 20th century in the US, culminating in the Civil Rights Movement and the efforts of Congress.

The first major milestone in the history of EEO was the Civil Rights Act of 1964, which prohibited discrimination in employment based on colour, national origin, race, religion, and sex. Title VII of the Act also created the Equal Employment Opportunity Commission (EEOC) to enforce the law and assist United States employees who faced discrimination. It was the first federal law in favour of protecting the interests of workers and employees. 

The first few years following the legislation of the EEOC were spent interpreting, defining and handing out guidelines to employees and workers about its laws and clauses. However, the EEOC did not have much power until 1972, when Congress granted it the authority to handle lawsuits against employers who violated the anti-discriminatory clauses. 

In addition to Title VII, other federal statutes were enacted over the years to expand the scope of EEO and protect more groups of workers from discrimination. These include: 

  1. The Equal Pay Act of 1963 prohibits employers from paying employees of one sex less wages than those of the other while making them perform work of equal capacity, intelligence and time requirements. 
  2. The Age Discrimination in Employment Act of 1967 prohibits discrimination in employment on the basis of age against individuals 40 years of age or older. It does not consider individuals under the age of 40.
  3. The Rehabilitation Act of 1973, which prohibits discrimination on the basis of mental and physical disability. Under this Act, those who possess, or are thought to possess, a wide range of disabilities, ranging from Paraplegia to Down Syndrome to Autism, are protected. However, it does not emphasise that an employer must hire candidates with the disabilities that the statute mentions.
  4. The Americans with Disabilities Act of 1990 prohibits discrimination against qualified individuals with disabilities by private employers, state and local governments, employment agencies, and labour unions.
  5. The Genetic Information Nondiscrimination Act of 2008 criminalises discrimination based on family history and genetic information.

These laws also required employers to make reasonable accommodations for employees with disabilities unless it would cause undue hardship to their business operations.

The various ways in which EEO can benefit organisations 

EEO is not only a legal obligation but also a moral and business imperative. It promotes diversity, inclusion, and fairness in the workplace, which, in turn, benefits both employees and employers in terms of productivity, innovation, and customer satisfaction. It is a strategic management move. Let’s have a look at the various aspects that get boosted upon implementation of EEO:

  1. Improving employee engagement and retention:  Employees who feel valued, respected and supported by their employers are more likely to stay motivated, productive and loyal. They are also less likely to experience stress, burnout and discomfort at the workplace. This is a strategic step to bring down employee turnover. According to a study by Deloitte, inclusive teams outperformed their peers by 80% in team-based assessments.
  2. Attracting and retaining diverse talent: EEO can help organisations tap into a wider pool of qualified candidates and leverage the advantages of diverse perspectives, skills and experiences. Diversity fosters creativity, innovation and problem-solving, as well as improving customer service and market reach. 
  3. Enhancing organisational reputation and brand image: An organisation with EEO naturally builds trust and credibility with its stakeholders, which include customers, investors, suppliers and communities. EEO helps organisations comply with legal and ethical standards and avoid potential lawsuits, fines or sanctions. For example, a report by McKinsey & Company records that companies in the top quartile for racial and ethnic diversity were 35% more likely to have financial returns above their national industry median. A Glassdoor survey revealed that 76% of job seekers said that a diverse workforce was important when considering job offers. Companies that rank top on the charts of diversity and inclusion are: Visa, Accenture, Here Technologies, Novartis, Medtronics, Nestle and the list goes on.
  4. Promoting a culture of diversity, inclusion and belonging (DIB): EEO encourages a work environment where everyone feels welcome, valued and empowered to contribute to the organisational goals and vision. DIB can foster collaboration, communication and learning among employees, as well as enhance their well-being and sense of purpose. A Society for Human Resource Management (SHRM) report showed that 88% of the employees considered respectful treatment on the job crucial  to their job satisfaction. 
  5. EEO facilitates Business Process Outsourcing (BPOs): One of the sectors that can greatly benefit from EEO is business process outsourcing (BPO). BPOs often operate in global markets and serve diverse clients across different industries and regions. Therefore, having a diverse and inclusive workforce can help BPOs gain a competitive edge and deliver high-quality services. Some of the benefits of EEO for BPOs are:
    1. Improving customer satisfaction and loyalty: BPOs can better understand and meet the needs and expectations of their diverse customers by having employees who can relate to them culturally, linguistically and emotionally. BPOs can also leverage their employees’ diverse insights and feedback to improve their products, services and processes. According to a study by Acquire BPO, 86% of customers said that they would be more loyal to a company that values diversity.
    2. Enhancing employee performance and productivity: BPOs can boost their employees’ morale, motivation and efficiency by providing them with equal opportunities for career development, training and recognition. BPOs can also reduce employee turnover and absenteeism rates by creating a supportive and respectful work culture. According to a study by the International Journal for Scientific Research and Development (IJSRD), there was a positive correlation between EEO practises and employee performance in BPOs.
    3. Reducing operational costs and risks: A lot of money and resources can be saved by BPO’s by avoiding legal disputes, penalties or reputational damage due to discrimination or harassment complaints. This can be achieved by enforcing policies that ensure compliance with EEO. BPOs can also mitigate the risks of losing clients or contracts due to poor service quality or ethical violations through the implementation of EEO. According to a study by the International Journal of Financial Management Research (IJFMR), there was a negative correlation between EEO practises and operational costs in BPOs.

How do you file an EEO complaint in the United States

A federal employee or job applicant who has faced discrimination in the workplace, has the right to file an Equal Employment Opportunity (EEO) complaint. This is a legal process that can help them seek justice and remedy any form of discrimination they face at the workplace or during recruitment. However, filing an EEO complaint can be daunting and confusing, especially if one is not familiar with the rules and procedures involved. So, let’s explain the basic steps of filing an EEO complaint and provide some useful tips and resources to help you along the way (note that these are meant for employees and job seekers in the United States): 

  1. Contact an EEO counsellor: The first thing you need to do is contact an EEO counsellor at the agency where you work or where you applied for a job. You must do this within 45 days from the day the incident of discrimination occurred, or you may lose your right to file a complaint. The EEO counsellor will inform you of your rights and responsibilities, explaining the EEO process. They will first try to resolve the matter informally through alternative dispute resolution (ADR) procedures. The counselling or ADR period usually lasts for 30 days, but it can be extended by another 60 days if both parties agree.
  2. File a formal complaint: If the dispute does not find settlement during the ADR, the next step is to file a formal complaint against the agency with its EEO Office. You will receive a notice from your EEO counsellor after the final interview about how to file a complaint and you must do it in the next 15 days. You must file your complaint at the same EEO Office where you received counselling.

Your complaint must contain:

  • Your name, address, and telephone number;
  • A short description of the events that you believe were discriminatory (for example, you were terminated, demoted, harassed);
  • Reason why you believe you were discriminated against (for example, because of your race, colour, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information or retaliation);
  • A short description of any injury you suffered; and
  • Your signature (or your lawyer’s signature).

The agency will review your complaint and decide whether to accept it for investigation or dismiss it for a procedural reason (for example, because your claim was filed too late). If the agency accepts your complaint, it has 180 days to complete it. If the agency dismisses your complaint, you can appeal the dismissal to the EEOC or file a lawsuit in federal court.

  1. Request a hearing or an agency decision: After the investigation is completed, the agency will give you two choices: you can either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether discrimination occurred. You must make your choice within 30 days from the day you receive the investigation report from the agency.

If you request a hearing, an EEOC Administrative Judge will conduct a trial-like proceeding where both parties can present evidence and witnesses. The judge will issue a decision within 180 days of your hearing request. The agency must issue a final order within 40 days of receiving the judge’s decision, stating whether it agrees or disagrees with the decision. It also states the remedies it will provide.

If you ask for an agency decision, the agency will issue a final decision within 60 days of receiving your request.

  1. File a lawsuit: If you are not satisfied with the outcome of your complaint, you have several options to challenge it:
    • You can challenge the agency’s final order or decision within 30 days of receiving it.
    • You can file a lawsuit in federal court within 90 days of receiving the agency’s final order or decision.
    • You can request reconsideration of the EEOC’s appellate decision within 30 days of receiving it.
    • You can file a lawsuit in federal court within 90 days of receiving the EEOC’s appellate decision if that decision is also unsatisfactory to you.

You should consult with an attorney before pursuing any of these options.

Handy tips and resources while filing an EEO complaint

Filing an EEO complaint can be a complex and lengthy process, but you don’t have to go through it alone. Here are some tips and resources to help you:

  1. Keep a record of all the documents and communications related to your complaint, such as the dates, times, names, and details of the discriminatory events, the names and contact information of any witnesses, and copies of your complaint, notices, reports, and decisions within accessible reach.
  2. Follow the deadlines and instructions carefully. If you miss a deadline or fail to follow a procedure, your complaint may be dismissed or delayed.
  3. Seek a legal advisor’s representation. You have the right to hire a lawyer or a representative at any stage of the EEO process. A lawyer or a representative can help you understand your rights, prepare your complaint, gather evidence, negotiate a settlement, or litigate your case. You can find a list of lawyers and representatives who specialise in EEO cases here.
  4. Contact the EEOC for more information or assistance. You can visit their website for this purpose or call their toll-free number at 1-800-669-4000. 

What are the EEO provisions in the Indian Constitution?

The Indian Constitution embodies the spirit of anti-discrimination and equal opportunity and is the flagbearer of the nation’s democratic foundations. Article 15 of our Constitution prohibits the state from discriminating on the grounds of religion, race, caste, sex or place of birth in matters such as access to public places, education and employment. Article 16 guarantees equal opportunity in matters of public employment and prohibits any discrimination on the same grounds as mentioned in Article 15, additionally, on the grounds of descent or residence.

However, the same articles also allow for some exceptions and reservations to promote the interests of socially and economically disadvantaged groups, such as the Scheduled Castes, Scheduled Tribes and Other Backward Classes. Article 16(4) empowers the state to make any provision for the reservation of appointments or posts in favour of any backward class citizens that, in the opinion of the state, are not adequately represented in the services under the state. Article 16(4A) further enables the state to make any provision for reservation in matters of promotion in favour of the Scheduled Castes and Scheduled Tribes, which, in the opinion of the state, are not adequately represented in the services under the state. These provisions, although seemingly contradictory, are complementary to the provision of EEO under law.

Provision of EEO in other Indian laws and policies

Apart from the constitutional provisions, there are other statutes and policies that aim to uphold EEO and prevent discrimination in employment. Some of these are:

  1. The Equal Remuneration Act, 1976, prohibits discrimination on the grounds of sex in matters of wages and recruitment for the same work or work of a similar nature.
  2. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which provides for reservation of not less than three percent of vacancies in government establishments for persons with disabilities. The Act lists seven conditions of disabilities that are considered under this act: blindness, low vision, leprosy (cured), hearing impairment, locomotor disability, mental retardation, and mental illness.
  3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which defines sexual harassment as a form of discrimination and provides for a mechanism to prevent and redress such complaints.
  4. The Equal Employment Opportunity (EEO) and Anti-Discrimination Policy Document by Digital Empowerment Foundation (DEF), which is an example of a voluntary policy adopted by a non-governmental organisation to promote EEO and discourage workplace discrimination.

Conclusion

The impact of equal employment on organisations is profound and far-reaching. It extends beyond compliance with legal requirements and ethical considerations to become a strategic imperative for businesses in the modern world. Organisations that prioritise diversity, equity, and inclusion in their workforce experience a multitude of benefits.

First and foremost, equal employment fosters a more innovative and creative work environment. Diverse teams bring together individuals with varied perspectives, backgrounds, and experiences, leading to richer and more comprehensive problem-solving and decision-making processes. This diversity of thought can be a significant driver of innovation and competitive advantage.

References

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