Glossary of Terms
ADVERSE IMPACT: Under the 'Uniform Guidelines on Employee Selection Procedures' of the Equal Employment Opportunity Coordinating Council.
"Adverse impact may be found when a selection process for a particular job or group of jobs results in the selection of members of any racial, ethnic, or sex group at a lower rate than members of other groups. The enforcement agencies will generally regard a selection rate for any group which is less than four fifths (4/5) or eighty percent of the rate for the group with the highest selection rate as constituting evidence of adverse impact......
Depending on the size of the sample and other factors, however, the enforcement agencies could measure adverse impact other than by the "80% rule". In a particular case, of course, the final arbiter of the question would be the federal courts.
AFFECTED CLASS: Any group which continues to suffer the effects of past discriminatory practices. Affected class status must be determined by analysis or court decision.
AFFIRMATIVE ACTION: Specific actions in recruitment, hiring, upgrading and other areas designed and taken for the purpose of eliminating the present effects of past discrimination, or to prevent discrimination.
AFFIRMATIVE ACTION PLAN: The written document through which management assures that all persons have equal opportunities in recruitment, selection, appointment, promotion, training, discipline and related employment areas. The plan is tailored to the employer's work force and the skills available in the labor force. It prescribes specific actions, goals, timetables, responsibilities and describes resources to meet identified needs. The plan is a comprehensive results oriented program designed to achieve equal employment opportunity rather than merely to assure nondiscrimination.
AFFIRMATIVE RECRUITMENT: Special recruitment efforts undertaken to assure that qualified protected class members are well represented in the applicant pools for positions from or in which they have been excluded or substantially underutilized. Such efforts may include contacting organizations and media with known protected class constituencies. Open job posting and advertising and "equal opportunity employer" statements necessary in many situations are matters of nondiscrimination rather than measures of affirmative recruitment.
APPLICANT FLOW: The number of applicants applying for a particular job over a given period of time, analyzed by protected class characteristics.
APPLICANT POOL: All people who have applied for a particular job or group of jobs during one period of opening. The collection of candidates from whom the selection or selections for available positions may be made.
BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ): A minimum qualification that is needed to be able to perform the duties of a particular job, which would otherwise be unlawful because of its discriminatory impact based on one's sex, religion, or national origin, etc. Examples are the requirement that an actor playing the part of a woman be a woman or that a minister of a particular religion be a member of that particular religion. The concept of BFOQ is interpreted very narrowly by both the EEOC and the federal courts. Age may be a BFOQ under the Age Discrimination Employment Act of 1967. Race is never a BFOQ.
BUSINESS NECESSITY: A legitimate business purpose that justifies an employment practice as valid and necessary for the effective achievement of the organization's objectives and the safe and efficient operation of the business.
CAREER LADDER: A hierarchy of jobs consisting of series of more complex duties and responsibilities within a general occupational area.
CIVIL RIGHTS: Personal rights guaranteed and protected by the Constitution, i.e., freedom of speech, press, freedom from discrimination.
CLASS ACTION: A civil action brought by one or more individuals on behalf of themselves and "all others similarly situated" (or equivalent language). The purpose of a class action is to secure a judicial remedy which not only eliminates a wrong committed against an individual, and compensates him or her for the effects of that wrong, but which also provides such remedies for all others in a definable class who have suffered as a result of the same practice or practices. The technical legal requirements and definition of a class in federal court proceedings are contained in Rule 23 (b) of the Federal Rules of Procedure.
CODE OF FEDERAL REGULATIONS (CFR): The code contains Presidential executive orders and regulations based on those orders, federal laws, and other federal regulations. Related matters are grouped together. Title 41 CFR Chapter 60, for example, deals with the various Department of Labor EEO regulations and guidelines concerning federal government contractors.
COERCION: Coercion is:
· the use of violence or threats of violence against a person or the person's family or property;
· depriving or hindering a person in the use of any tool, implement or clothing; or
· attempting to intimidate a person by threats or force,
· when committed with the intent to compel a person to do or abstain from doing an act that the person has the right to do or abstain from doing.
In the context of sexual misconduct, coercion is the use of pressure to compel another individual to initiate or continue sexual activity against an individual's will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person's words or conduct are sufficient to constitute coercion if they impair another individual's freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include threatening to "out" someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity.
COMPARABLE WORTH: Payment of wages based on the value of the work performed taking into consideration such factors as education, training, skills, experience, effort, responsibility and working conditions, This issue is raised particularly in comparing the salaries paid for occupations that are traditionally female to salaries paid for those that are traditionally male.
COMPLIANCE: A situation in which an agency fully meets the requirements of laws, rules and regulations and court cases which mandate nondiscrimination and affirmative action.
COMPLIANCE AGENCY: Any local, state, or federal government agency which administers laws or regulations in the EEO field.
CONSENT: Consent is defined as:
· An affirmative, clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in sexual activity. Consent is active, not passive. Silence or lack of resistance cannot be interpreted as consent. Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
· The existence of a dating relationship or past sexual relations between the participants does not constitute consent to any other sexual act.
· The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity or gender expression.
· Affirmative consent must be ongoing throughout the sexual activity and may be withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop.
· Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary); inability to communicate due to a mental or physical condition; the lack of consciousness or being asleep; being involuntarily restrained; if any of the parties are under the age of 16; or if an individual otherwise cannot consent.
Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
DATING VIOLENCE: Dating Violence is an act committed by a person who is or has been in a "dating relationship" with the reporting party:
1. The existence of such a relationship shall be determined based on the reporting party's statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.
2. For the purpose of this definition Dating Violence includes but is not limited to:
· Displaying sexually suggestive objects, pictures, magazines, cartoons, or screen savers;
· Inquiries, remarks, or discussions about an individual's sexual experiences or activities and other written or oral references to sexual conduct including but not limited to, sexual or physical abuse or the threat of such abuse.
DIFFERENTIAL VALIDATION: Validation of test at different score levels for different classes of people. This is not tantamount to "lowering standards" for one or more groups to favor them over others. Differential validation occurs only where lower test scores by one class actually do predict a level of job performance equivalent to that predicted by the higher scores of another class.
DISABLED INDIVIDUAL: Any person who:
- has a physical or mental impairment that substantially limits one or more major life activities
- has a record of such impairment
- is regarded as having such an impairment.
The following are general definitions as to the meaning of 'disability':
a. Physical or Mental Impairment means 1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or 2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities, The term 'physical or mental impairment' Includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction and alcoholism.
b. Major Life Activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
c. Has a Record of Such an Impairment means has a history of a mental or physical impairment that substantially limits one or more life activities.
d. Is Regarded as Having an Impairment means 1) has a physical or mental impairment that does not substantially limit major life activities but that is treated by an agency as constituting such a limitation; 2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or 3) has none of the impairments defined above but is treated by an agency as having such an impairment.
e. Substantially Limits means the degree the impairment affects employability. A handicapped individual who is likely to experience difficulty in securing, retaining or advancing in employment will be considered substantially limited.
DISABLED VETERAN: A person entitled to disability compensation under laws administered by the U.S. Veteran's Administration for a disability rate of 30 percent or more, or a person whose discharge or release from active duty was for a disability incurred or aggravated in the line of duty.
DISCRIMINATION: An intentional or unintentional act which adversely affects employment opportunities because of race, color, religion, sex, handicap, marital status, or national origin, or other factors such as age (under particular laws.) See Age Discrimination in Employment Act of 1967.
DISPARATE EFFECT OR DISPARATE IMPACT: The result of an employment policy, practice, or procedure that, in practical application, has less favorable consequences for a protected class than for the dominant group.
DISPARATE TREATMENT: Employment practices such as the use of tests or educational requirements, fair and neutral on their face, which are applied or administered in an unfair manner. An example would be using an "old boy network" to hire for jobs even though the positions have been posted.
DIVISION OF HUMAN RIGHTS: The New York State agency established to receive, investigate and pass upon complaints alleging violations of the Human Rights Law.
DOMESTIC VIOLENCE: An act that includes but is not limited to violence which occurs when a person commits one of the following acts against or upon the person's spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person's minor child or any other person who has been appointed the custodian or legal guardian for the person's minor child:
1. A battery.
2. An assault.
3. Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform.
4. A sexual assault.
5. A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:
e. Destruction of private property.
f. Carrying a concealed weapon without a permit.
g. Injuring or killing an animal.
6. A false imprisonment.
Unlawful entry of the other person's residence, or forcible entry against the other person's will if there is a reasonably foreseeable risk of harm to the other person from the entry.
EMPLOYEE: Under Title VII of the Civil Rights Act of l964, as amended:
- " . . . an individual employed by an employer except that the term 'employee' shall not include any person elected to public office in any State or political subdivision of any State ... or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State Government, governmental agency or political subdivision."
EMPLOYER: Under Title VII of the Civil Rights Act of 1964, as amended:
- " . . . a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." The U.S. Government and its wholly owned corporations, Indian tribes, certain departments of the District of Columbia Government, and tax exempt, bona fide private membership clubs are excluded from the definition.
EQUAL EMPLOYMENT OPPORTUNITY: Where all personnel activities are conducted so as to assure equal access in all phases of the employment process.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC): The federal government agency mandated to enforce Title VII of the Civil Rights Act of 1964, as amended. The Commission has five members, each appointed to a five year term by the President of the United States with the advice and consent of Congress. The Federal Commission on Equal Employment Opportunity has the power to bring suits, subpoena witnesses, issue guidelines which have the force of law, render decisions, provide legal assistance to complainants, etc., in regard to fair employment.
EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL (EEOCC): The coordinating body established under Section 715 of Title Vil of the Civil Rights Act of 1964 in its amendment by the Equal Employment Opportunity Act of 1972. The EEOCC is composed of the Secretary of Labor, the Chairman of the EEOC, the Attorney General, the Chairman of the U.S. Civil Service Commission, or their respective delegates. The Council is responsible for taking steps to. . . maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations . . ." of various federal agencies with compliance responsibilities in equal employment opportunity.
EQUAL PAY: To provide equal pay for men and women performing the same or substantially similar jobs in the same establishment, (As required by the Equal Pay Act of 1963 for employers subject to the Fair Labor Standards Act) (e.g., in a department store a female salesperson in the ladies shoe department must receive pay equal to that of a male salesperson in the men's shoe department.)
ETHNIC GROUP: A group identified on the basis of religion, color or national origin.
EXECUTIVE ORDER: A regulation by the President of the United States or the chief executive of a state which has the effect of law.
GENDER: Refers to the attitudes, feelings, and behaviors that a given culture associates with a person's biological sex.
GENDER EXPRESSION: Refers to the "...way in which a person acts to communicate gender within a given culture; for example, in terms of clothing, communication patterns and interests." (American Psychological Association, 2008, p. 28).
GENDER IDENTITY: Refers to "one's sense of oneself as male, female, or transgender" (American Psychological Association, 2006).
GOALS: Good faith, quantitative employment objectives which employers voluntarily set as the minimum progress they can make within a certain time period (usually one year) to correct under utilization of protected classes in their work force.
GUIDELINES: Documents published by various compliance agencies for the purpose of clarifying provisions of a law or regulation and indicating how an agency will interpret its law or regulation.
HANDICAP: (See Disabled Individual.)
HUMAN RIGHTS DISPENSATION: N.Y.S. Executive Law, Article l5 Section 296, 12 provides that an employer may make extraordinary efforts to increase the employment members of those minority group members which have a disproportionately high unemployment rate. Implementation of this provision is subject to approval by the Division of Human Rights.
JOB ANALYSIS: The systematic study of a job to provide information which will enable those planning examinations or other selection devices to determine the knowledge, skills and abilities required for successful performance on the job.
JOB CATEGORY: A grouping or aggregation of job classifications for purposes of analysis or official reporting. For example: Officials and Administrators; Instructional; Professional Non instructional; Clerical/Secretarial; Technical/Paraprofessional.
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP): The branch of the U.S. Department of Labor responsible for monitoring the compliance status of and resolving complaints against all employers having contracts with the Federal Government.
PARITY: A condition achieved in an organization when the protected class composition of its work force is equal to that in the relevant available labor force.
PRIMA FACIE: A legal presumption that arises from a basic showing of facts which will control a decision unless explicitly proved untrue. In the EEO area, statistics of under utilization have been sufficient to make a prima facie case for discrimination. It is then the responsibility of the employer to justify those statistics.
PROTECTED CLASSES: Groups identified in Executive Order 6 (minorities, women, disabled persons and Vietnam Era Veterans) that are specifically protected against employment discrimination.
QUOTAS: In employment law, court ordered or approved hiring and/or promoting of specified numbers or ratios of minorities or women in positions from which a court has found they have been excluded as a result of unlawful discrimination. Quotas are not the same as goals and timetables.
Racial/Ethnic Groups: The racial and ethnic groups protected by Federal equal employment opportunity laws are American Indians and Alaskan Natives; Asians; Blacks; Native Hawaiians and Other Pacific Islanders; and Hispanics. Racial/ethnic groups are defined by the Federal Government as follows:
- American Indian or Alaskan Native: A person having origins in the original peoples of North, South, or Central America. For Alaska Native, please include tribal affiliation if possible.
- Asian: A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
- Black/African American: A person having origins in the original peoples of Africa.
- Native Hawaiian or Other Pacific Islander: A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
- White: A person who traces their origins or descent to the original peoples of Europe, North Africa, or the Middle East.
- Hispanic: Persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.
REASONABLE ACCOMMODATION: The changing of environment, schedules or requirements to adapt to the known physical or mental limitations of a qualified handicapped applicant or employee.
RELEVANT WORK FORCE: All individuals who are qualified to perform a particular job and who would accept employment in the particular geographic location.
SELECTION PROCESS: Any measure, combination of measures, or procedure used as a basis for any employment decision; commonly consists of minimum qualifications, test(s), employment interview, and probationary period.
SELECTIVE CERTIFICATION: The process of certifying the names of persons on an eligible list based on their possession of specific qualifying criteria (e.g. by sex).
SEX: Refers to a person's biological status and is typically categorized as male, female, or intersex (i.e., atypical combinations of features that usually distinguish male from female).
SEXUAL ASSAULT: When a person subjects another person to sexual penetration, or forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct .
SEXUAL HARASSMENT: Unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- Submission to the conduct is either an explicit or implicit term or condition of employment
- Submission to or rejection of the conduct is used as a basis for an employment affecting the person rejecting or submitting to the conduct
- The conduct has the purpose or effect of unreasonably interfering with an affected person's work performance, or creating an intimidating, hostile, or offensive work environment.
SEXUAL ORIENTATION: A private preference of an individual protected by Executive Order No. 28 for heterosexuality, homosexuality or bisexuality; or a history of such a preference; or an identification with having such a preference.
SEXUAL VIOLENCE: A severe form of sexual harassment, and refers to physical sexual acts or attempted sexual acts perpetrated against a person's will or where a person is incapable of giving consent, including but not limited to rape, sexual assault, sexual battery, sexual coercion or similar acts in violation of state or federal law.
STALKING: When a person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member. Stalking includes but is not limited to:
1. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
a. Fear for the person's safety or the safety of others; or
b. Suffer substantial emotional distress.
2. For the purpose of this definition:
a. Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens or communicates to or about, a person, or interferes with a person's property.
b. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
c. Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
STANDARD METROPOLITAN STATISTICAL AREA (SMSA): A statistical standard developed for use by federal agencies in the production, analysis, and publication of data on metropolitan areas; each SMSA has one or more central counties containing the area's main population concentration and may also include outlying counties which have close economic and social relationships with the central counties.
SYSTEMIC DISCRIMINATION: A pattern of discrimination throughout a place of employment (or program) that is a result of pervasive, interrelated actions, policies or procedures.
TIME TABLE: A specified time frame, required in all affirmative action plans, within which an employer must achieve established numerical employment goals.
UNDER UTILIZATION / UNDER REPRESENTATION: Term used to describe a situation wherein a lower number of protected class employees are represented than parity would predict. Once under utilization is quantitatively established, an employer must 1) demonstrate that the under utilization is the legitimate effect of a BFOQ or results from business necessity; or 2) develop an affirmative action program with specific, action oriented steps to overcome this under utilization.
UNITED STATES COMMISSION ON CIVIL RIGHTS: An independent, bipartisan agency established by Congress in 1957 and directed to:
(a) Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, handicap or national origin, or by reason of fraudulent practices,
(b) Study and collect information concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, handicap or national origin, or in the administration of justice.
(c) Appraise Federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap or national origin, or in the administration of justice.
(d) Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, handicap or national origin.
(e) Submit reports, findings and recommendations to the President and Congress.
VALIDATION: The process by which employee selection devices are demonstrated empirically to be predictive of job performance. Under EEOC Guidelines, tests or other selection devices which screen out minorities or women at a greater rate than others must be validated according to procedures which meet the published standards of the American Psychological Association.
VETERAN: A person who served in the Armed Forces of the United States during a period specified and was honorably discharged or was released under honorable circumstances. Armed Forces is defined as the Army, Navy, Marine Corps, Air Force and Coast Guard, including all components thereof, and the National Guard when in the service of the United States pursuant to call as provided by law on a full-time active duty basis, which does not include active duty for training purposes.
(A) A veteran who is entitled to compensation under laws administrated by the Department of Veterans Affairs for a disability and is: (1) rated at 30 percent or more, or (2) rated at 10 or 20 percent in the case of a veteran who has been determined under Section 1506, Title 38, U.S.C. to have a serious employment handicap.
(B) A veteran who was discharged or released from active duty because of a service-connected disability.
Veteran of the Vietnam Era:A veteran who served on active duty for a period of more than 180 days and was discharged or released with other than a dishonorable discharge, if any part of such active duty occurred:
- in the Republic of Vietnam between February 28, 1961 and May 7, 1975, or
- between August 5, 1964 and May 7, 1975 in all other cases, or
- a veteran who was discharged or released from active duty for a service-connected disability if any such active duty was performed: (a) in the Republic of Vietnam between February 28, 1961 and May 7, 1975; or (b) between August 5, 1964 and May 7, 1975 in all other cases.
(A) Veterans who actively served at any point between December 7, 1941 and April 28, 1952; or
(B) Veterans who served on active duty in a campaign or expedition for which a campaign badge has been authorized. The Campaigns or Expeditions that meet this criterion as of August 31, 1999 are identified on page 3 of this form. A veteran qualifies under this criterion ONLY based upon military service IN the identified campaign or expedition and NOT simply based on any military service during the time of the campaign or expedition. The campaign badges, service medals, and expeditionary medals that qualify under this criterion are listed on the veteran’s “Armed Forces of the U.S. Report of Transfer of Discharge,” commonly known as the DD-214 form, if the veteran meets this criterion.
WORK FORCE ANALYSIS: A statistical analysis of the numbers and percentages of all employees of a specific employer by race, or ethnic origin, sex, Vietnam Era Veteran and/or disability status by job category and level.