The following is a compilation of fact sheets from the U.S. Equal Employment Opportunity Commission (EEOC), summarizing key provisions of laws that prohibit job-related discrimination based on age, disability, ethnicity, gender, or religion. It explains the complaint process, describes factors particular to federal agencies, and provides guidance on "non-waivable rights.". More information is available from the web site www.eeoc.gov. Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- The U.S. Equal Employment Opportunity Commission _________________________________________ How to File a Charge If you believe you have been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job because of your race, color, sex, religion, national origin, age, or disability, or believe that you have been discriminated against because of opposing a prohibited practice or participating in an equal employment opportunity matter, you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Charges may be filed in person, by mail or by telephone by contacting the nearest EEOC office. If there is not an EEOC office in the immediate area, call toll free 800-669-4000 or 800-669-6820 (TDD) for more information. To avoid delay, call or write beforehand if you need special assistance, such as an interpreter, to file a charge. There are strict time frames in which charges of employment discrimination must be filed. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, adhere to the following guidelines when filing a charge. Title VII of the Civil Rights Act (Title VII) charges must be filed with EEOC within 180 days of the alleged discriminatory act. However, in states or localities where there is an antidiscrimination law and an agency authorized to grant or seek relief, a charge must be presented to that state or local agency. Furthermore, in such jurisdictions, you may file charges with EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier. It is best to contact EEOC promptly when discrimination is suspected. When charges or complaints are filed beyond these time frames, you may not be able to obtain any remedy. Americans with Disabilities Act (ADA) - The time requirements for filing a charge are the same as those for Title VII charges. Age Discrimination in Employment Act (ADEA) - The time requirements for filing a charge are the same as those for Title VII and the ADA. Equal Pay Act (EPA) - Individuals are not required to file an EPA charge with EEOC before filing a private lawsuit. However, charges may be filed with EEOC and some cases of wage discrimination also may be violations of Title VII. If an EPA charge is filed with EEOC, the procedure for filing is the same as for charges brought under Title VII. However, the time limits for filing in court are different under the EPA, thus, it is advisable to file a charge as soon as you become aware the EPA may have been violated. For more detailed information, please contact the EEOC office nearest to you. ---------- Facts About Age Discrimination The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. APPRENTICESHIP PROGRAMS It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption. JOB NOTICES AND ADVERTISEMENTS The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the essence of the business. PRE-EMPLOYMENT INQUIRIES The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA. BENEFITS The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. WAIVERS OF ADEA RIGHTS At an employer's request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive. ---------- Facts About the Americans with Disabilities Act Title I of the Americans with Disabilities Act of 1990, which took effect July 26, 1992, 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. An individual with a disability is a person who: * Has a physical or mental impairment that substantially limits one or more major life activities; * Has a record of such an impairment; or * Is regarded as having such an impairment. A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: * Making existing facilities used by employees readily accessible to and usable by persons with disabilities. * Job restructuring, modifying work schedules, reassignment to a vacant position; * Acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies, and providing qualified readers or interpreters. An employer is required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids. MEDICAL EXAMINATIONS AND INQUIRIES Employers may not ask job applicants about the existence, nature or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs. DRUG AND ALCOHOL ABUSE Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA, when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees. EEOC ENFORCEMENT OF THE ADA The U.S. Equal Employment Opportunity Commission issued regulations to enforce the provisions of Title I of the ADA on July 26, 1991. The provisions originally took effect on July 26, 1992, and covered employers with 25 or more employees. On July 26, 1994, the threshold dropped to include employers with 15 or more employees. ---------- Facts About National Origin Discrimination Title VII of the Civil Rights Act of l964 protects individuals against employment discrimination on the basis of national origin as well as race, color, religion and sex. It is unlawful to discriminate against any employee or applicant because of the individual's national origin. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group. SPEAK-ENGLISH-ONLY RULE A rule requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule. ACCENT An employer must show a legitimate nondiscriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance. HARASSMENT Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other verbal or physical conduct because of an individual's nationality constitute harassment if they create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities. Employers have a responsibility to maintain a workplace free of national origin harassment. Employers may be responsible for any on-the-job harassment by their agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer. Under certain circumstances, an employer may be responsible for the acts of non-employees who harass their employees at work. IMMIGRATION-RELATED PRACTICES WHICH MAY BE DISCRIMINATORY The Immigration Reform and Control Act of 1986 (IRCA) requires employers to prove all employees hired after November 6, 1986, are legally authorized to work in the United States. IRCA also prohibits discrimination based on national origin or citizenship. An employer who singles out individuals of a particular national origin or individuals who appear to be foreign to provide employment verification may have violated both IRCA and Title VII. Employers who impose citizenship requirements or give preference to U.S. citizens in hiring or employment opportunities may have violated IRCA, unless these are legal or contractual requirements for particular jobs. Employers also may have violated Title VII if a requirement or preference has the purpose or effect of discriminating against individuals of a particular national origin. ---------- Facts About Pregnancy Discrimination The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. HIRING An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job. An employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of co-workers, clients or customers. PREGNANCY AND MATERNITY LEAVE An employer may not single out pregnancy related conditions for special procedures to determine an employee's ability to work. However, an employer may use any procedure used to screen other employees' ability to work. For example, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to submit such statements. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer may not have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave. HEALTH INSURANCE Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered. Pregnancy related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis. The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions. No additional, increased or larger deductible can be imposed. If a health insurance plan excludes benefit payments for pre-existing conditions when the insured's coverage becomes effective, benefits can be denied for medical costs arising from an existing pregnancy. Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees. FRINGE BENEFITS Pregnancy related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy related conditions if benefits are provided for other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy related conditions. Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits. ---------- Facts About Race/Color Discrimination Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion. It is unlawful to discriminate against any employee or applicant for employment because of his/her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related. Equal employment opportunity cannot be denied because of marriage to or association with an individual of a different race; membership in or association with ethnic based organizations or groups; or attendance or participation in schools or places of worship generally associated with certain minority groups. Race-Related Characteristics and Conditions Discrimination on the basis of an immutable characteristic associated with race, such as skin color, hair texture, or certain facial features violates Title VII, even though not all members of the race share the same characteristic. Title VII also prohibits discrimination on the basis of a condition which predominantly affects one race unless the practice is job related and consistent with business necessity. For example, since sickle cell anemia predominantly occurs in African-Americans, a policy which excludes individuals with sickle cell anemia must be job related and consistent with business necessity. Similarly, a "no-beard" employment policy may discriminate against African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps) unless the policy is job related and consistent with business necessity. Harassment Harassment on the basis of race and/or color violates Title VII. Ethnic slurs, racial "jokes," offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual's work performance. Segregation and Classification of Employees Title VII is violated where minority employees are segregated by physically isolating them from other employees or from customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments or geographic areas. It is also illegal to exclude minorities from certain positions or to group or categorize employees or jobs so that certain jobs are generally held by minorities. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where minorities are excluded from employment or from certain positions. Pre-Employment Inquiries Requesting pre-employment information which discloses or tends to disclose an applicant's race suggests that race will be unlawfully used as a basis for hiring. Solicitation of such pre-employment information is presumed to be used as a basis for making selection decisions. Therefore, if members of minority groups are excluded from employment, the request for such pre-employment information would likely constitute evidence of discrimination. However, employers may legitimately need information about their employees' or applicants' race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use "tear-off sheets" for the identification of an applicant's race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process. ---------- Facts About Religious Discrimination Title VII of the Civil Rights Act of l964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer (see also 29 CFR l605). Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee's religious beliefs. Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship. An employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee's religious practices denies another employee the job or shift preference guaranteed by the seniority system. An employee whose religious practices prohibit payment of union dues to a labor organization cannot be required to pay the dues, but may pay an equal sum to a charitable organization. Mandatory "new age" training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Title VII. Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee's religious beliefs, whether or not the employer believes there is a religious basis for the employee's objection. ---------- Facts About Sexual Harassment Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances, including but not limited to the following: * The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. * The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. * The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. * Unlawful sexual harassment may occur without economic injury to or discharge of the victim. * The harasser's conduct must be unwelcome. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis. Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains. ---------- Facts About Federal Sector Equal Employment Opportunity Complaint Processing Regulations (29 CFR Part 1614) Part 1614 of the federal sector equal employment opportunity complaint processing regulations replaces part 1613, with the objective of promoting greater administrative fairness in the investigation and consideration of federal sector EEO complaints by creating a process that is quicker and more efficient. STATUTES COVERED BY 1614 REGULATIONS Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in employment based on race, color, religion, sex or national origin. Section 501 of the Rehabilitation Act of 1973 makes it illegal to discriminate against federal employees and applicants for employment based on disability. Federal agencies are required to make reasonable accommodations to the known physical and mental limitations of qualified employees or applicants with disabilities. Section 501 also requires affirmative action for hiring, placement and promotion of qualified individuals with disabilities. The Equal Pay Act prohibits employers from discriminating on the basis of sex in the payment of wages where substantially equal work is performed under similar working conditions. The Age Discrimination in Employment Act protects people 40 years of age and older by prohibiting age discrimination in hiring, discharge, pay, promotions and other terms and conditions of employment. RETALIATION/REPRISAL A person who files a complaint or charge, participates in an investigation or charge, or opposes an employment practice made illegal by any of the above statutes is protected from retaliation. FILING A COMPLAINT WITH A FEDERAL AGENCY The first step for an employee or applicant who feels he or she has been discriminated against by a federal agency is to contact an equal employment opportunity counselor at the agency where the alleged discrimination took place within 45 days of the discriminatory action. Ordinarily, counseling must be completed within 30 days. The aggrieved individual may then file a complaint with that agency. The agency must acknowledge or reject the complaint and if it does not dismiss it, the agency must, within 180 days, conduct a complete and fair investigation. If the complaint is one that does not contain issues that are appealable to the Merit Systems Protection Board (MSPB), at the conclusion of the investigation, the complainant may request either a hearing by an Equal Employment Opportunity Commission (EEOC) administrative judge (AJ) or an immediate final decision by the employing agency. The AJ must process the request for a hearing, issue findings of fact and conclusions of law, and order an appropriate remedy within 180 days. After the final decision of the agency, the complainant may appeal to the Commission within 30 days or may file in U.S. District Court within 90 days. Either party may request reconsideration by the Commission. The complainant may seek judicial review. FILING AN APPEAL WITH THE EEOC If the agency dismisses all or part of a complaint, a dissatisfied complainant may file an expedited appeal, within 30 days of notice of the dismissal, with the EEOC. The EEOC may determine that the dismissal was improper, reverse the dismissal, and remand the matter back to the agency for completion of the investigation. A complainant may also appeal a final agency decision to the EEOC within 30 days of notice of the decision. The EEOC will examine the record and issue decisions. If the complaint is on a matter that is appealable to the Merit Systems Protection Board (e.g., a mixed case such as a termination of a career employee), the complainant may appeal the final agency decision to the MSPB within 20 days of receipt or go to U.S. District Court within 30 days. The complainant may petition the EEOC for review of the MSPB decision concerning the claim of discrimination. REMEDIES The EEOC's policy is to seek full and effective relief for each and every victim of discrimination. These remedies may include: * posting a notice to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation; * corrective or preventive actions taken to cure or correct the source of the identified discrimination; * nondiscriminatory placement in the position the victim would have occupied if the discrimination had not occurred; * compensatory damages; * back pay (with interest where applicable), lost benefits; * stopping the specific discriminatory practices involved; and * recovery of reasonable attorney's fees and costs. Information on all EEOC-enforced laws may be obtained by calling toll free on 800-669-EEOC. EEOC's toll free TDD number is 800-800-3302. This fact sheet is also available in alternate formats, upon request. ---------- EEOC NOTICE Number 915.002 Date 4/10/97 1. SUBJECT: Enforcement Guidance on non-waivable employee rights under Equal Employment Opportunity Commission (EEOC) enforced statutes. 2. PURPOSE: This enforcement guidance sets forth the EEOC's position that an employer may not interfere with the protected right of employees to file a charge or participate in any manner in an investigation, hearing, or proceeding under the laws enforced by EEOC.1 3. EFFECTIVE DATE: Upon issuance. 4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, Section a(5), this Notice will remain in effect until rescinded or superseded. 5. ORIGINATOR: ADEA Division, Office of Legal Counsel. 6. INSTRUCTIONS: File after the last Enforcement Guidance in the 800 series of Volume II of the EEOC Compliance Manual. 7. SUBJECT MATTER: I. General Statement An employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., or the Equal Pay Act (EPA), 29 U.S.C. § 206(d). These employee rights are non-waivable under the federal civil rights laws. This position is built on two cornerstones: (a) interference with these protected rights is contrary to public policy; and (b) the anti-retaliation provisions of the civil rights statutes prohibit such conduct.2 II. Background Some employers attempt to limit an individual's right to file a charge or participate in an EEOC proceeding by requiring him or her to sign an agreement in which s/he relinquishes these statutory rights. Such language may appear in contracts requiring the use of alternative dispute resolution procedures (such as mediation or arbitration), waiver agreements,3 employee handbooks, employee benefits plans, and "non-compete" agreements. Notwithstanding the format or context of the agreement in which such language might appear, promises not to file a charge or participate in an EEOC proceeding are null and void as a matter of public policy. Agreements extracting such promises from employees may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights statutes. III. Analysis A. Public Policy. EEOC acts to vindicate the public interest in the eradication of employment discrimination. "[T]he EEOC is not merely a proxy for the victims of discrimination .... Although [it] can secure specific relief, such as hiring or reinstatement ..., on behalf of discrimination victims, the agency is guided by 'the overriding public interest in equal employment opportunity ... asserted through direct Federal enforcement.'" General Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980) (quoting 118 Cong. Rec. 4941 (1972)). A strong public policy prohibits interference with governmental law enforcement activities. Agreements that prevent employees from cooperating with EEOC during enforcement proceedings interfere with enforcement activities because they deprive the Commission of important testimony and evidence needed to determine whether a violation has occurred. Furthermore, insofar as such agreements make it more difficult for the Commission to prosecute past violations, an atmosphere is created that tends to foster future violations of the law. See Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 710 (1945); EEOC v. Astra USA, Inc., 94 F.3d, 738, 742 (1st Cir. 1996). In EEOC v. Astra USA, Inc., the employer obtained settlement agreements from a number of employees which, inter alia, prohibited them from assisting the Commission in investigating any sexual harassment charges against the employer. The district court granted the Commission's request for a preliminary injunction prohibiting Astra from entering into or enforcing the provisions of the settlement agreements barring employees from assisting the Commission during the investigation of any charges. 94 F.3d at 742. The First Circuit affirmed the injunction. Invoking important public policy concerns, the court pointed out that Congress "entrusted the Commission with significant enforcement responsibilities in respect to Title VII." EEOC v. Astra USA, 94 F.3d at 744. It cited EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984), for the bedrock principle that the Commission's ability to investigate charges of systemic discrimination must not be impaired. Turning to the agreements in controversy, the court concluded that "clearly, if victims of or witnesses to [employment discrimination] are unable to approach the EEOC or even to answer its questions, the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered .... The EEOC acts not only on behalf of private parties but also 'to vindicate the public interest in preventing employment discrimination.'" Id., citing General Telephone Co. v. EEOC, 446 U.S. at 326. The First Circuit reasoned that "[p]ublic policy ... clearly favors the free flow of information between victims of [employment discrimination] and the agency entrusted with righting the wrongs inflicted upon them." 94 F.3d at 745. Thus, "any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest." Id. at 744. See also EEOC v. U.S. Steel Corp., 671 F. Supp. 351, 357-59 (W.D. Pa. 1987) (invalidating as contrary to public policy retirement plan provision that conditioned higher benefits on retiree's promise not to assist in EEOC investigations). A strong public policy interest also prohibits interference with the right to file a charge with EEOC.4 The primary purpose of a charge of discrimination filed with EEOC is to "place the EEOC on notice that someone ... believes that an employer has violated [one of the anti-discrimination statutes]." EEOC v. Shell Oil Co., 466 U.S. at 68; see also EEOC v. Cosmair, Inc., 821 F.2d 1085, 1089 (5th Cir. 1987)(primary purpose of a charge under ADEA "is not to seek recovery from the employer but rather to inform the EEOC of possible discrimination"). This notice to the EEOC serves to trigger law enforcement proceedings by the EEOC that include an investigation and, if there is a finding of discrimination, may include conciliation and litigation. Thus, every charge filed with the EEOC carries two potential claims for relief: the charging party's claim for individual relief, and the EEOC's claim "to vindicate the public interest in preventing employment discrimination." General Telephone Co. v. EEOC, 446 U.S. at 326. Courts have consistently recognized that individuals possess a non-waivable right to file charges with the EEOC. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991)(individual who signs an agreement to submit an employment discrimination claim to arbitration remains free to file a charge with EEOC); EEOC v. Cosmair, Inc., 821 F.2d at 1090 (invalidating former employee's promise not to file a charge with EEOC because it "could impede EEOC enforcement of the civil rights laws" and is void as against public policy); EEOC v. U.S. Steel Corp., 671 F. Supp. at 357-59 (invalidating as contrary to public policy retirement plan provision that conditioned higher benefits on retiree's promise not to file charges with EEOC). Congress reaffirmed the public policy against interference with EEOC enforcement efforts, including the right to file a charge, by including the following explicit language in the waiver provisions of the Older Workers Benefit Protection Act of 1990 (OWBPA), amending the ADEA: "No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission." 29 U.S.C. § 626(f)(4) (ADEA). The legislative history states that this statutory provision is intended "as a clear statement of support for the principle that the elimination of age discrimination in the workplace is a matter of public as well as private interest." Moreover, "[n]o waiver agreement may be permitted to interfere with the achievement of that goal. This position is consistent with the holding and reasoning of EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987)." S. Rep. No. 263, 101st Cong., 2d Session 35; Legislative History of OWBPA, Part 1 p.354. See also EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996) (In light of the strong public interest in eradicating age discrimination, EEOC authority to enforce the ADEA cannot be altered by a waiver of the rights of a private party). These principles apply equally to all of the statutes enforced by the EEOC. B. Prohibitions Against Retaliation. Congress enacted provisions barring retaliation in each of the statutes enforced by the Commission in large part to ensure that employees remain free to report suspected violations to the government. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 889 (7th Cir. 1996) ("Given the instrumental role individual employees play in the statutory scheme, the protection of those individuals from retaliatory acts by the employer 'is essential to accomplish the purpose of Title VII.'") (quoting EEOC v. Pacific Press Pub. Ass=n, 676 F.2d 1272, 1281 (9th Cir. 1982)); Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986) (retaliation "is likely to cause irreparable harm to the public interest in enforcing the law by deterring others from filing charges"). Cf. NLRB v. Scrivener, 405 U.S. 117, 121-22 (1972) (" 'Congress has made it clear that it wishes all persons with information about [unlawful practices] to be completely free from coercion against reporting them to the [government.]' ... This complete freedom is necessary ... 'to prevent the [government's] channels of information from being dried up by employer intimidation of prospective complainants and witnesses.'") (construing anti-retaliation provisions of the National Labor Relations Act). Agreements that attempt to bar individuals from filing a charge or assisting in a Commission investigation run afoul of the anti-retaliation provisions because they impose a penalty upon those who are entitled to engage in protected activity under one or more of the statutes enforced by the Commission. By their very existence, such agreements have a chilling effect on the willingness and ability of individuals to come forward with information that may be of critical import to the Commission as it seeks to advance the public interest in the elimination of unlawful employment discrimination. See, e.g., EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992) (unlawful retaliation for a collective bargaining agreement to allow the termination of an administrative grievance proceeding upon the filing of a charge with EEOC); EEOC v. Cosmair, Inc., 821 F.2d at 1089 (impermissible retaliation arises when payments to which one is otherwise entitled are stopped merely because a charge is filed with EEOC); EEOC v. U.S. Steel Corp., 671 F.Supp. at 358 (retaliation under §4 (d) of the ADEA results when an employer revokes enhanced pension benefits for persons who file charges or otherwise participate in EEOC proceedings)5. Cf. Connecticut Light & Power v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996) (construing the anti-retaliation provisions of the Energy Reorganization Act of 1974 and finding a violation where an agreement sought to prevent an individual from reporting unlawful conduct to the government). C. The Commission=s Position is Consistent with the Public Interest in the Voluntary Settlement of Employment Discrimination Disputes. The Commission supports efforts by employers and employees to resolve employment discrimination disputes voluntarily. In particular, on April 25, 1995, the Commission announced that it "supports efforts by employers to develop voluntary internal ADR programs to address workplace discrimination disputes, because the interests of employers and employees will be served by the development of fair, credible, internal ADR programs that resolve discrimination disputes satisfactorily."6 Nothing in this enforcement guidance diminishes Commission support for post-dispute agreements entered into knowingly and voluntarily to settle claims of discrimination or utilize alternative dispute resolution mechanisms. Nor does the guidance create any Asubstantial disincentive to settlement.@ See EEOC v. Astra USA, 94 F.3d at 744. In this regard, the Commission notes that even though an individual who has signed a waiver agreement or otherwise settled a claim subsequently files a charge with the Commission based on the same claim, the employer will be shielded against any further recovery by the charging party provided the waiver agreement or settlement is valid under applicable law. This is true whether the EEOC or the private individual brings a subsequent action. See EEOC v. Astra USA, Inc., 94 F.3d at 744 (injunction prohibiting covenants preventing employees from assisting EEOC does nothing at all to promote further litigation between Astra and the settling employees or to disturb the finality of the negotiated settlement); EEOC v. Cosmair, Inc., 821 F. 2d at 1091 (although an employee cannot waive the right to file a charge with EEOC, he can waive the right to recover in his own lawsuit as well as the right to recover in a lawsuit brought by the EEOC on his behalf); EEOC v. U.S. Steel Corp, 671 F. Supp. at 358 (where provision in a waiver agreement preventing employees from assisting EEOC is enjoined, employer may still assert the waiver as a bar to recovery on a claim of age discrimination brought by or on behalf of an individual who signed a valid waiver involving that claim). However, while a private agreement can eliminate an individual's right to personal recovery, it cannot interfere with EEOC=s right to enforce Title VII, the EPA, the ADA, or the ADEA by seeking relief that will benefit the public and any victims of an employer's unlawful practices who have not validly waived their claims. See EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291-92 (7th Cir. 1993); EEOC v. United Parcel Serv., 860 F.2d 372, 374 (10th Cir. 1988); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542-43 (9th Cir. 1987); New Orleans S.S. Ass'n v. EEOC, 680 F.2d 23, 25 (5th Cir. 1982); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir. 1975). Enforcement actions for the purpose of advancing the public interest in the elimination of employment discrimination are squarely within the EEOC's authority "to vindicate rights belonging to the United States as sovereign." Goodyear Aerospace Corp., 813 F.2d at 1543 (citation omitted). IV. Conclusion For the reasons set forth and discussed above, an employer may not interfere with an individual=s protected right under Title VII, the EPA, the ADA, or the ADEA to file a charge, testify, assist, or participate in any manner in an EEOC investigation, hearing, or proceeding. V. Charge Processing Instructions 1. Investigators should take and process charges in conformity with priority charge processing procedures regardless whether the charging party has signed a waiver of his or her right to file a charge. 2. If a charging party has been required to relinquish his or her right to file a charge or participate in a commission investigation, hearing, or proceeding, a cause determination should be issued. 4-11-97 /s/ _______________ ____________________________________ Date Gilbert F. Casellas Chairman 1. Although the enforcement guidance addresses this issue primarily in the context of the private sector, the principles and considerations discussed herein are equally applicable to the federal sector. 2. Title VII, for example, provides that: it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. 42 U.S.C. § 2000e-3. In Robinson v. Shell Oil Company, 117 S. Ct. 843 (1997), the Supreme Court held that this section extends protection to former employees. Comparable anti-retaliation provisions appear at 29 U.S.C. § 623 (d) (ADEA); 29 U.S.C. § 215 (a) (3) (EPA); and 42 U.S.C. § 12203 (a) and (b) (ADA). 3. "Waiver agreement" refers to the type of agreement described in section 7(f) of the ADEA (permitting knowing and voluntary waiver of an individual=s right to recovery under the Act). 29 U.S.C. § 626(f). Although the ADEA is the only EEOC-enforced statute containing specific language authorizing the use of knowing and voluntary waiver agreements, such agreements are widely used with respect to rights protected under other statutes enforced by the Commission. 4. The Commission relies on charges not only as its principal source of information regarding unlawful conduct, but also, in the case of Title VII and the ADA, as a statutory prerequisite for its investigations and proceedings. 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117(a) (ADA section incorporating Title VII procedures). Under the ADEA and EPA, the Commission is empowered to investigate without a charge. 29 U.S.C. § 626(a) (ADEA) and 29 U.S.C. § 211 of the Fair Labor Standards Act (FLSA). 5. A longstanding Commission interpretive regulation under the ADEA provides that "[c]lauses in employee benefit plans which state that litigation or participation in any manner in a formal proceeding by an employee will result in the forfeiture of his rights are unlawful insofar as they may be applied to those who seek redress under the Act. This is by reason of section 4 (d) which provides that it is unlawful for an employer ... to discriminate against any individual because such individual 'has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act.'" 29 C.F.R. § 1625.10(d)(5). 6. See Daily Lab. Rep. (BNA), No. 80 (April 26, 1995). ---------- End of Document