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Practical Guide to Equal Employment Opportunity

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Walter B. Connolly, Jr., Michael J. Connolly


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A Practical Guide to Equal Employment Opportunity, a comprehensive two-volume set, is the only EEO compliance manual you'll ever need. Volume One analyzes discrimination on the basis of race, religion, national origin, sex, age and disabilities. It offers concrete suggestions regarding: hiring standards; seniority; promotions; transfers and discharges; equal pay and “comparable worth”; privacy; employer's liability for sexual harassment of employees; same-sex sexual harassment; employers' use of subjective criteria in promotion decisions; what constitutes a “serious health condition” under the Family and Medical Leave Act; affirmative action and reverse discrimination; labor union liability; record-keeping requirements; and federal and state agency procedures. Volume Two features EEO compliance documents, including: model affirmative action plans; a sample EEO manual; EEO training programs; testing and selection procedures; and checklists for affirmative action and evaluation of federal contractors.

Book #00527; looseleaf, two volumes, 2,552 pages; published in 1979, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-001-2


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 2552
  • ISBN: 978-1-58852-001-2
  • Pub#/SKU#: 527
  • Volume(s): 2

Author Image
  • Walter B. Connolly, Jr.
Walter B. Connolly, Jr. is a member of the Detroit office of Connolly, Rodgers & Scharman, PLLC.

Also by Walter B. Connolly, Jr.:
Use of Statistics in Equal Employment Opportunity Litigation
Practical Guide to The Occupational Safety and Health Act


Author Image
  • Michael J. Connolly

Michael J. Connolly is a member of the Detroit office of Connolly, Rodgers & Scharman PLLC. He was formerly General Counsel of the EEOC.


Also by Michael J. Connolly:
Use of Statistics in Equal Employment Opportunity Litigation

PART I
BACKGROUND


CHAPTER 1
Major Sources of Legal Protection of Equal Employment Opportunity

§ 1.01 The Sources
[1] The Civil Rights Act of 1866
[2] The Civil Rights Act of 1871
[3] Title VII of the Civil Rights Act of 1964
as Amended by the Equal Employment Opportunity Act of 1972
[4] The Civil Rights Act of 1991
[5] The Family and Medical Leave Act of 1993
[6] The Religious Freedom Restoration Act of 1993
[7] The Federal Age Discrimination in Employment Act of 1967
[8] The Equal Pay Act of 1963
[9] Executive Order 11246 as Amended by Executive Order 11375 Under Federal Government Contracts
[10] State and Local Fair Employment Practice Laws
[11] The National Labor Relations Act
[12] Genetic Information Nondiscrimination Act of 2008
§ 1.02 Background of Law
[1] The Elements of Prohibited Discrimination
[2] Substantive Defenses to Discrimination
[3] Remedies
[4] Qualified Immunity

CHAPTER 2
Employment Practices, Policies and Plant Rules Affected by the Substantive Content of the EEO Obligation

§ 2.01 Advertising, Recruiting, Referral, Preemployment Inquiries and Hiring Standards
[1] Advertising for Job Applicants
[2] Recruiting and Referral of Job Applicants
[3] Preemployment Inquiries
[4] Job Interviews
§ 2.02 Hiring Standards
[1] Police Records—Arrests and Convictions
[2] High School or College Requirement
[3] Hiring Standards that Discriminate Against Women—No Marriage Rules, Pregnancy, Children
[4] Applicant’s Participation in Illegal Activities
[5] Preference for Applicants Who Are Relatives or Friends of Current Employees
[6] Minimum Height and Weight Requirements
[7] Rejection of Applicants Because of Poor Credit Records
[8] Differential Pay Rates for Newly Hired Employees
[9] Hiring Standards Based on Age
[10] Hiring Standards Relating to Religion
[11] Hiring Standards Based on Citizenship
[12] Hiring Standards Representing Avoidance of Burdensome Obligations
[13] Hiring Standards Based on Performance Reports of Other Employers
[14] Hiring Standards Based on Drug Use
[15] Hiring Standards Based on Language Barriers
[16] Hiring Standards Based on Alien Status
[17] Indian Preferences Exemption
§ 2.03 Enforcement of Plant Rules and Work Policies Not Related to Job Performance
[1] Grooming Rules
[2] Discharge for Conviction of Serious Crime
[3] Discharge for Several Garnishments
[4] Falsifying Employment Applications
[5] Inability to Get Along with Co-Workers
[6] Fighting and Discriminatory Provocation
[7] Fetal Protection Policies
[8] Language Rules
[9] Requirement That Employees Provide Social Security Number and Other Personal Information
§ 2.04 Scheduling Work
[1] State Laws Restricting Women with Respect to Overtime, Weight Lifting and the Like
[2] Accommodation to Religion
[3] Equal Pay for Equal Work
[4] Physical Facilities and Other Conditions of Employment

CHAPTER 3
Seniority, Promotions, Transfers and Discharges

§ 3.01 Seniority, Promotions, Transfers and Other Employment Actions
[1] Seniority Systems
[2] Promotions
[3] Transfers
[4] Work Assignments
[5] Demotions
[6] Training
[7] Performance Evaluations
§ 3.02 Exceptions to the Immunizing Effect of Section 703(h)
§ 3.03 The Impact of Teamsters on the Remedial Provision of Executive Order 11246 and 42 U.S.C. Section 1981
[1] Executive Order
[2] Section 1981
§ 3.04 Discharge
[1] Generally
[2] Discharge for Cause
[3] Discharge for Participating in Wildcat Strike
[4] Falsifying Employment Application
[5] Inability to Get Along with Fellow Employees
[6] Fighting and Discriminatory Provocation
[7] Constructive Discharge
[8] Retaliatory Discharge and Other Acts of Retaliation
[9] Bias of Low-Level Employee or Supervisor
[10] Association Discrimination
[11] Summary

CHAPTER 4
Procedural Aspects of the EEO Obligation

§ 4.01 Background
§ 4.02 Posting Requirements and Elements of a Charge
[1] Posting Requirements
[2] Elements of a Charge
§ 4.03 Related Filing Requirements and Time Limitation Periods Concerning Agency Enforcement
§ 4.04 Investigation
§ 4.05 Deferral to State Agencies
§ 4.06 EEOC Procedure After Investigation of a Charge of Discrimination
[1] Determination as to Reasonable Cause
[2] The “Right to Sue” Letter
[3] Commencement of Civil Action
§ 4.07 Commissioner’s Charges
§ 4.08 Court Suits and Debarment Proceedings Under Executive Order 11246
[1] Title VII
[2] Equal Pay Act
[3] Age Discrimination in Employment Act
[4] Executive Order 11246
§ 4.09 The Effect of Private Arbitration Proceedings on Subsequent Title VII Lawsuits
§ 4.10 EEOC or State FEPC Investigation of Alleged Discrimination
[1] Relationship of the Investigation to the Formal Charge of Discrimination and to the Scope of a Subsequent Lawsuit
[2] Access to Employment Records and the EEOC’s Subpoena Power

CHAPTER 5
The Legal Aspects of the Conciliation Process, Delegation of Authority and Scope of Charge

§ 5.01 Conciliation by the EEOC as an Essential Precondition to the Filing of a Lawsuit by the EEOC
§ 5.02 Adequacy of Conciliation Efforts
§ 5.03 Must the Commission Find Reasonable Cause to Believe that a Violation of Title VII Had Occurred?
§ 5.04 Scope of the Charge as Compared to the Scope of Conciliation
[1] Introduction
[2] Arguments Related to Limiting Lawsuits to Individual Allegations
[3] “Like or Reasonably Related” Test
[4] The EEOC’s Position
[5] Delay
[6] Unequal Treatment of Charging Parties and Respondents

PART II
SPECIAL PROTECTED CLASSES


CHAPTER 6
Sex Discrimination

§ 6.01 Introduction
[1] Sources of Law
[2] Scope of Protection
§ 6.02 State Protective Laws
§ 6.03 Family Responsibilities and Marital Status
[1] Employment Policies Relating to Pregnancy
[2] The Family and Medical Leave Act of 1993
§ 6.04 Job Qualifications
[1] Grooming Rules
[2] Height and Weight Requirements
§ 6.05 Employee Benefit Plans
[1] Fringe Benefits
[2] Pregnancy Disability Benefits
[3] Retirement Plans
§ 6.06 Unions and Collective Bargaining Agreements
§ 6.07 Sexual Harassment
[1] Difficulty of Drawing the Line in the Modern Workplace
[2] EEOC Guidelines
[3] Distinction Between Two Theories of Sexual Harassment
[4] Sexual Harassment with Tangible Employment Action
[5] Hostile Environment Harassment
[6] Common Law Tort Claims of Sexual Harassment
[7] Preventive Measures
[8] Suits Brought Against Employers by Alleged Harassers

CHAPTER 7
Equal Pay

§ 7.01 Introduction
§ 7.02 Establishment Coverage
§ 7.03 Administrative Enforcement
§ 7.04 Court Enforcement
§ 7.05 Statute of Limitations
§ 7.06 Penalties, Back Pay Liability and Damages
§ 7.07 Class Actions
§ 7.08 Liability of Unions
§ 7.09 Methods of Compliance
§ 7.10 Burden of Proof
§ 7.11 Relationship of the Equal Pay Act to Title VII
§ 7.12 State Protective Laws
§ 7.13 Criteria for Defining Equal Pay for Equal Work
[1] Equal Pay
[2] Equal Work
[3] Equal Skill
[4] Equal Effort
[5] Equal Responsibility
[6] Similar Working Conditions
§ 7.14 Other Factors
§ 7.15 Comparable Worth

CHAPTER 8
Age Discrimination

§ 8.01 Introduction
§ 8.02 Coverage
[1] Individuals Protected
[2] Groups Subject to the Act
§ 8.03 Recordkeeping
§ 8.04 Prohibited Acts
§ 8.05 Procedural Requirements
[1] Suits by the Equal Employment Opportunity Commission
[2] Actions by Individuals
§ 8.06 Establishing a Cause of Action Under the ADEA
[1] Evidence of Discrimination
[2] Plaintiff’s Prima Facie Case
[3] Employer’s Response to Plaintiff’s Prima Facie Case
[4] Proof of Pretext and Intentional Discrimination
§ 8.07 Remedies
[1] Equitable Relief
[2] Reinstatement, Back Wages and Restitution of Fringe Benefits
[3] Liquidated Damages
[4] Compensatory Damages
[5] Punitive Damages
[6] Attorneys’ Fees
[7] Front Pay
[8] Jury Trials
[9] Effect of After-Acquired Evidence of Employee Misconduct

CHAPTER 9
Religious Discrimination

§ 9.01 Introduction
§ 9.02 The Plaintiff’s Prima Facie Case
[1] In General
[2] Bona Fide Religious Belief
[3] Adequacy of Notice to Employer
§ 9.03 Reasonable Accommodation
[1] Employer’s Duty
[2] Employee’s Duty
§ 9.04 Undue Hardship
[1] The Supreme Court and Hardison
[2] Post-Hardison Decisions
§ 9.05 Statutory Exemptions to Religious Discrimination
§ 9.06 The First Amendment and Reasonable Accommodation

CHAPTER 10
Discrimination Against Individuals With Disabilities

§ 10.01 “Individual With a Disability”—The Threshold Issue
[1] General Applicability to Rehabilitation Act and ADA
[2] Definitions
§ 10.02 The Rehabilitation Act of 1973
[1] In General
[2] Parties to Government Contracts and Subcontracts—Section 503
[3] Federal Government as Employer—Section 501
[4] Programs or Activities Receiving Federal Financial Assistance—Section 504
[5] Individuals Must Be “Otherwise Qualified”
[6] Reasonable Accommodation
[7] Employment Practices Affected
[8] Legitimate Hiring Concerns
§ 10.03 The Americans with Disabilities Act of 1990 (“ADA”) and the Private Workplace
[1] Scope of the ADA
[2] Prohibited Acts of Discrimination Under the ADA
[3] Enforcement of the ADA
§ 10.04 Requirement to Make Reasonable Accommodation Under the ADA
[1] Nature and Scope of Requirement
[2] Undue Hardship
[3] Respective Obligations of Employee and Employer
[4] Particular Applications
[5] Reassignment
§ 10.05 Defenses Under the ADA
[1] Statutory Defenses
[2] Employer Defenses to Employee’s Evidence of Discrimination
§ 10.06 Pretext for Discrimination—Overriding the Employer’s Defense
§ 10.07 HIV/AIDS in the Workplace
[1] HIV/AIDS as a Public Health Issue
[2] Diagnosis and Transmission of the Virus
[3] Legal Issues Surrounding HIV/AIDS
[4] Practical Concerns for Employers of Employees Infected with HIV/AIDS
[5] Sample Workplace HIV/AIDS Guidelines

PART III
PRACTICAL PROBLEMS FOR EMPLOYERS


CHAPTER 11
Testing

§ 11.01 Introduction
§ 11.02 A Summary and Discussion of the Uniform Guidelines
[1] Tests and Other Selection Procedures
[2] Adverse Impact
[3] The Bottom Line Concept
[4] Three Major Types of Validation Procedures
[5] Use of Tests to Assess Promotability
[6] Recordkeeping
[7] Synthetic Validation
§ 11.03 Court Cases Involving Testing
[1] Determination of Adverse Impact
[2] Proof of Validity
[3] Use of Tests for Promotion and Layoffs
[4] Constitutional Issues

CHAPTER 11A
Drug and Alcohol Testing

§ 11A.01 Introduction
§ 11A.02 Testing of Public and Quasi-Public Employees—Constitutional Considerations
[1] Fourth Amendment
[2] Due Process Under the Fourteenth Amendment
§ 11A.03 Federal Regulation of Private Employees
[1] Drug-Free Workplace Act
[2] Department of Transportation Regulations
[3] Nuclear Power Plants and Reactors
§ 11A.04 Private Employees
[1] General Principles; Lack of State Action
[2] Pre-Employment Testing
[3] Testing Employees
§ 11A.05 Federal and State Statutory Provisions
[1] Disability Status
[2] State Drug Testing Statutes
[3] Discrimination Laws
[4] Unemployment Compensation
[5] Labor Laws
§ 11A.06 State Common Law Causes of Action
[1] Negligence
[2] Invasion of Privacy
[3] Defamation
[4] Breach of Contract
[5] Violation of Public Policy
§ 11A.07 Practical Considerations to Minimize Potential Liability
[1] Establishing a Program
[2] Communicating the Program
[3] Developing Appropriate Procedures
[4] Applying the Policy Consistently
[5] Establishing an Employee Assistance Program

CHAPTER 12
Joint Employer-Union Liability for Damages

§ 12.01 Sources of Possible Liability
[1] Statutory Basis
[2] Quasi-Statutory Basis
§ 12.02 Procedural Consideration Governing Title VII Suits
§ 12.03 Joinder in Non-Title VII Cases

CHAPTER 13
Health Hazards to Women in the Workplace: OSHA and Title VII Considerations

§ 13.01 Introduction
§ 13.02 The Occupational Safety and Health Act of 1970
[1] Specific Standards
[2] General Duty Clause
§ 13.03 Title VII Implications
[1] Danger to Workers
[2] Danger to Offspring

CHAPTER 14
Reverse Discrimination and Affirmative Action

§ 14.01 Introduction
[1] Remedying Past Discrimination
[2] “Reverse Discrimination” Defined
[3] The Right to Institute Reverse Discrimination Suits
[4] The Statutory Basis for Reverse Discrimination Suits
§ 14.02 Reverse Discrimination and Affirmative Action Plans
[1] Historical Background
[2] Reconciling the Conflict Between Affirmative Action and Reverse Discrimination
[3] Requirements for Affirmative Action Plans
§ 14.03 An In-Depth Look at Court Ordered, OFCCP Ordered and OFCCP Mandated Affirmative Action Plans
[1] Court Ordered Quotas
[2] OFCCP Ordered Goals
[3] OFCCP Mandated Affirmative Action Plans
§ 14.04 Guidelines for the Development of Affirmative Actions Plans
[1] General Recommendations
[2] Factors to Be Considered
[3] Justification for Affirmative Action

CHAPTER 15
Privacy and Employment

§ 15.01 Sources of the Right to Privacy: The Legal Framework
[1] Constitutional Guarantees of Privacy
[2] Statutory Guarantees of Privacy
[3] The Common Law of the Fifty States
§ 15.02 State Common Law of Torts
[1] Introduction
[2] Public Disclosure of Embarrassing Private Facts
[3] Defenses to a Common Law Privacy Action
§ 15.03 The Confidential Duty Doctors Owe to Patients
§ 15.04 Constitutional Rights of Privacy as a Bar to Government Requests for Employee Information
[1] Invoking Employee Rights Vicariously
[2] Constitutional Privacy as a Bar to Government Access to Data
§ 15.05 Implications of the Federal Privacy Act
§ 15.06 Conclusions and Recommendations
[1] Conclusions
[2] Specific Suggestions

CHAPTER 16
Affirmative Action Programs and Compliance Reviews Under Executive Order 11246, as Amended

§ 16.01 Affirmative Action Programs
[1] In General
[2] Elements of Affirmative Action Programs
[3] Procedures for Disseminating, Auditing and Reporting Policies and Programs
[4] Goals and Timetables
[5] Execution of the Affirmative Action Program
[6] Appointment of an EEO Officer
§ 16.02 The Compliance Review
[1] Introduction
[2] Preparation for Review
[3] Stages of Review
[4] On-Site Review
[5] EEO Policies and Procedures
[6] Work Force-Analysis—EEO-1 Report
[7] Employment Procedures
[8] Job Security, Benefits and Disciplinary Action
[9] Wage and Salary Analysis
[10] Promotions and Transfers
[11] Training and Educational Opportunities
[12] Projections—Goals and Timetables
[13] The Exit Conference
§ 16.03 Sanctions and Hearings
[1] Background
[2] Equal Opportunity Clause
[3] Sanctions
[4] Administrative Responsibility
[5] Enforcement

CHAPTER 17 Recordkeeping Requirements
§ 17.01 Policy Matters
[1] Periodic Review
[2] Disclosure of Personnel File Materials and Information
[3] Double Filing System
[4] Involuntary Disclosure
§ 17.02 Recordkeeping Requirements Under the Fair Labor Standards Act
[1] General Requirements
[2] Record Retention Periods
[3] Records Pertaining to Executive, Administrative, Professional or Outside Sales Employees
[4] Records Pertaining to Employees Subject to Miscellaneous Exemptions or Special Requirements
[5] Posting of Notices
§ 17.03 Recordkeeping Requirements Under the Age Discrimination in Employment Act
[1] General Requirements
[2] Record Retention Requirements
[3] Posting of Notices
§ 17.04 Recordkeeping Requirements Under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act
[1] General Regulations
[2] Special Recordkeeping
[3] Employee Terminations
[4] Additional Requirements when a Discrimination Charge Is Pending
[5] Apprenticeship Program Records
[6] Posting Requirements
§ 17.05 Recordkeeping Requirements Under Executive Order 11246
[1] General Requirements
[2] Specific Requirements
[3] Posting of Notices
§ 17.06 Recordkeeping Requirements Under the Vocational Rehabilitation Act of 1973
[1] General Requirements
[2] Specific Requirements
[3] Posting of Notices
§ 17.07 Recordkeeping Requirements Under the Vietnam-Era Readjustment Assistance Act of 1974
[1] General Requirements
[2] Specific Requirements
[3] Posting of Notices
§ 17.08 Recordkeeping Requirements Under the Public Contracts Act (Walsh-Healy Act)
[1] General Requirements
[2] Record Retention Periods
[3] Records Pertaining to Injuries
§ 17.09 Recordkeeping Requirements Under the Occupational Safety and Health Act
[1] General Requirements
[2] Specific Requirements
[3] Posting Requirements
[4] Employee Access to Records
§ 17.10 Additional Apprenticeship Program Records
[1] Form and Content of Records
[2] Retention Period
§ 17.11 Recordkeeping Requirements Under the Labor Management Recording and Disclosure Act
[1] General Requirements
[2] Specific Requirements

PART IV
PUBLIC SECTOR DISCRIMINATION


CHAPTER 18
Employment Discrimination in the Public Employment Sector

§ 18.01 Application to Public Employers of Federal Law Prohibiting Discrimination
§ 18.02 Constitutional Issues Under the Fifth, Eleventh and Fourteenth Amendments
§ 18.03 The Application of Title VII to Employees of the Federal Government
§ 18.04 Impact of Anti-Discrimination Laws on Civil Service and Personnel Systems

CHAPTER 19
Discrimination Cases in the Federal Government

§ 19.01 Introduction
§ 19.02 Agency Program Requirement
§ 19.03 How to File a Complaint of Employment Discrimination
[1] Pre-Complaint Processing
[2] Right to File a Formal Complaint
[3] The Formal Complaint
§ 19.04 The Investigation
[1] Investigative Pamphlet
[2] Operating Manuals
[3] Statistics
[4] Legal Precedent
[5] Agency Decision
§ 19.05 Adjustment of Complaint, Hearing, and Avoidance of Delay
[1] Hearing
[2] Procedure and Proof
[3] Appeal Options
§ 19.06 Civil Action: Federal Court
§ 19.07 Retroactivity
§ 19.08 Continuing Violations
§ 19.09 Introduction of Evidence at Trial
[1] Class Actions
[2] Attorneys’ Fees

PART V
CLASS ACTIONS AND STATISTICAL PROOF


CHAPTER 20
Title VII Class Action Discrimination Suits

§ 20.01 Class Action Prerequisities
[1] Numerosity
[2] Commonality of Questions of Law or Fact
[3] Typicality of Claims
[4] Adequacy of Representation
§ 20.02 Functional Categories of Class Actions
[1] Title VII Class Action Limitations
[2] Notice to the Class Members
[3] Proof of Claim Form
[4] Applicability of Rule 23 to Suits Brought by the EEOC

CHAPTER 21
Using Statistics in Civil Rights Cases

§ 21.01 Survey of the Use of Statistics in Civil Rights Cases
[1] Historical Background
[2] The Statistical Approach in Litigating Employment Discrimination Cases
[3] The Use of Regression Analysis
§ 21.02 Plaintiff’s Task: Establishing a Prima FacieCase
[1] Early Precedents
[2] Shifting the Burden of Proof
§ 21.03 Defenses: Responses to the Prima Facie Case
[1] Alternative Statistical Showings
[2] Defenses of Business Necessity and Bona Fide Occupational Qualification
[3] Bona Fide Seniority Defense
[4] Timeliness of Challenge and Post-Act Discrimination
[5] What Constitutes a Bona Fide Seniority System
§ 21.04 The Hiring Process Cases
[1] A Basic Approach: Comparing an Employer’s Work Force with a Sample Group
[2] Applicant Flow Analysis
[3] Analyzing the Impact of Hiring Prerequisites
§ 21.05 Discipline and Discharge
[1] Introduction
[2] Statistics Used to Establish a Prima Facie Case
[3] The Use of Statistics to Rebut a Prima Facie Case
§ 21.06 Job Assignment, Transfers and Promotions
[1] The Appropriate Sample Size and Target for Analysis
[2] Comparisons with External Work Force Data
[3] Weakness with Work Force Components
[4] Rates of Promotion, Assignment and Transfer, and Combination Approaches
§ 21.07 The Use of Statistics in Cases Brought Under the Age Discrimination in Employment Act

Index