The Frequently Asked Questions and answers below are intended to address certain frequently asked questions concerning various equal employment opportunity laws. The FAQs are issued in conjunction with the Governor’s Executive Order No. 24, “Policies Preventing Discrimination, Harassment and Retaliation in State Employment, Services and Contracts under the Jurisdiction of the Office of the Governor.” Executive Order No. 24 directed the Office of State Human Resources to issue guidance in furtherance of the goals set forth in the Executive Order; this FAQ document is one form of such guidance.
The FAQS are intended to supplement OSHR’s Equal Employment Opportunity Policy for state employees, found here. In the event of any conflict between the FAQs herein and the EEO Policy, the EEO Policy shall control.
The FAQs are intended for those state agencies, boards, commissions, and departments under the jurisdiction of the Office of the Governor, and all directors, supervisors, officers, officials, managers, staff, and employees covered under North Carolina General Statutes Chapter 126 (the “State Human Resources Act”). If you have questions regarding whether or not these FAQs apply to your particular circumstances, please consult your department’s Human Resources Office.
Who is protected by age discrimination laws?
The Age Discrimination in Employment Act of 1967 (ADEA) protects applicants and employees who are 40 years of age or older from employment discrimination based on age, including age-based harassment.
It does not protect workers under the age of 40.
Can my employer ask about my age?
Employers may ask an employee or applicant's age or date of birth but must ensure that they ask about age only for a lawful, employment related purpose.
Can employers assign work based on employees' ages?
No. Employers may not assign work based on employees' ages, even if the employer believes the assignments will benefit the workers. For example, an employer cannot assign an older employee to a position or task in which the employee would only service or work with older customers.
Who is protected by disability discrimination laws?
Title I of the Americans with Disabilities Act of 1990 prohibits state and local governments 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.
Beyond protection from discrimination, North Carolina state government is committed to lead the way on including more people with disabilities in the workplace. Governor Cooper signed Executive Order 92 in May 2019 to establish meaningful work as the first and preferred choice for North Carolinians, regardless of disability.
What is the definition of disability?
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
What is a reasonable accommodation?
An accommodation is any change in the work environment or in the way things are customarily done that enables a qualified individual with a disability to enjoy equal employment opportunities. A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential job functions of the job in question. Examples of reasonable accommodations may include:
- making existing facilities accessible;
- job restructuring;
- part-time or modified work schedules;
- acquiring or modifying equipment;
- changing tests, training materials, or policies when possible;
- providing qualified readers or interpreters; and
- reassignment to a vacant position.
How must an individual request a reasonable accommodation?
When an individual decides to request accommodation, the individual or the individual’s representative must let the employer know that s/he needs an adjustment for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation.”
May an employer ask an individual for documentation when the individual requests reasonable accommodation?
Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the individual’s disability and functional limitations.
What are the limitations on the obligation to make a reasonable accommodation?
The disabled individual requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if the employee has not requested one or if it would 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 considering several factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's 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.
Once a reasonable accommodation is requested, the employer and the individual should discuss the individual's needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.
Do requests for reasonable accommodation need to be in writing?
No. Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication, including writing the request or completing required employer forms.
Can an employer refuse to hire an applicant or fire a current employee who is illegally using drugs?
Yes. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a "qualified individual with a disability" protected by the ADA.
Is testing for illegal drugs permissible under the ADA?
Yes. A test for illegal drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results.
Are people with AIDS covered by the ADA?
Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV disease from discrimination.
What is genetic information?
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history).
What are some examples of genetic information discrimination?
Genetic information discrimination occurs when an employer uses genetic information to make an employment decision. For example, it is illegal for an employer to refuse to hire an applicant because her grandmother has breast cancer and the employer is afraid that the applicant will be diagnosed with breast cancer, causing the employer's health insurance costs to increase. Genetic information discrimination also occurs when an employer unlawfully obtains genetic information.
What is harassment?
Harassment is unwelcome conduct that is based on race, color, national origin, ethnicity, religion, sex, pregnancy, gender identity or expression, sexual orientation, age (40 or older), political affiliation, National Guard or veteran status, disability or genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. All employees have the right to work in an environment free from discrimination and harassment.
Can any negative interaction between employees be considered unlawful harassment?
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of unlawful harassment. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
What should I do if I am harassed by a manager, co-worker, or other person in my workplace?
If you are being harassed at work, you have a responsibility to tell your employer. If you feel comfortable, you also should tell the harasser that you find their behavior unwelcome. The State of North Carolina has a policy preventing workplace harassment. Report any unwelcome behavior or speech to your manager or another manager in your agency, or to your department’s Human Resources Office.
Is it illegal for someone to harass another person who is the same sex, race, color, national origin, or religion or who has the same disability?
Yes. It is illegal for people to harass others of their own sex, religion, race, color, national origin, or religion. It also is illegal for a person with a disability to harass other individuals with the same disability or genetic information or other disabilities or genetic information.
Am I protected from workplace harassment if the harasser is not my supervisor?
Employment laws protect you from being harassed by anyone in your workplace. The harasser can be your manger, a manager in another area, someone you supervise, a co-worker, or others in your workplace, such as clients or customers.
Are men protected from harassment?
Yes. All genders are protected from workplace harassment.
What is national origin discrimination?
National origin discrimination involves treating applicants or employees unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
How can national origin discrimination impact language requirements?
Any accent standards, fluency requirements, and English-only rules must be narrowly tailored and may only be applied to those specific employment situations where they are needed to promote safe and efficient job performance or business operations.
May employers make job assignments based on national origin?
No. It is unlawful for an employer to assign or refuse to assign employees to certain jobs, facilities, or geographic areas based on their national origin. For example, employment law prohibits assigning employees to non-customer contact jobs or to back room jobs based on their national origin.
Can my employer discriminate against me because I have an accent?
An employer may base a job decision on your accent if your accent would materially interfere with your ability to perform the job. In all other cases, an employer may not treat you differently because of your accent.
Can my employer require me to be fluent in English?
An employer may require you to be fluent in written or spoken English but only if it is necessary for effective job performance.
What workplace actions are prohibited under the Pregnancy Discrimination Act (PDA)?
Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a person if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.
May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?
Questions related to gender-related characteristics such as pregnancy are not permitted. Any enforcement agency will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination.
What are examples of medical conditions related to pregnancy or childbirth?
Medical conditions related to pregnancy may include symptoms such as back pain; disorders such as preeclampsia (pregnancy-induced high blood pressure) and gestational diabetes; complications requiring bed rest; and the after-effects of a delivery. Lactation is also a pregnancy-related medical condition.
May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?
No. An employer may not force an employee to take leave because she is or has been pregnant, if she is able to perform her job.
Are pregnant employees covered under Title I of the ADA?
Employees with pregnancy-related impairments may be covered by the ADA. Pregnancy-related impairments, such as gestational diabetes or preeclampsia, may be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.
Must an employer provide a reasonable accommodation to a worker with a pregnancy-related impairment who requests one?
Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship.
What are some accommodations a pregnant worker may need?
Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:
- Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
- Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
- Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time; and
- Temporarily reassigning an employee to a light duty position.
What is "Race"?
Race discrimination includes discrimination based on ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features. Common racial groups found in the workplace include: American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and White; and one ethnicity category, Hispanic or Latino.
What is "Color"?
Color discrimination occurs when a person is discriminated against based on the person’s skin pigmentation (lightness or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity.
How can employers avoid racial/color discrimination in hiring and promotions?
Race or color should not be a factor or consideration in making employment decisions. Reasons for selection decisions should be well supported and based on a person's objective qualifications for the position. Training on legal hiring processes plus diversity and inclusion are supported through the required Managers’ Equal Employment Opportunity Diversity Fundamentals curriculum (EEODF). Anti-bias training is available to all employees through the Learning Management System (LMS).
What employment actions are prohibited by employment law?
Employment law prohibits race and color discrimination in every aspect of employment, including recruitment, hiring, promotion, wages, benefits, work assignments, performance evaluations, training, transfer, leave, discipline, layoffs, discharge, and any other term, condition, or privilege of employment.
Is discrimination based on hair texture or hairstyle prohibited?
North Carolina State Government affirmatively prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against an individual, based on the individual’s hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin. Discrimination on the basis of race or national origin is prohibited based on existing Federal law, including the Civil Rights Act of 1964. This prohibition does not apply to worksite or occupational safety requirements regarding hair length or other uniform or grooming needs that are based on safety.
What are some examples of religious discrimination?
Religious discrimination involves treating a person (an applicant or employee) unfavorably because of the person’s religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to or associated with an individual of a religion.
Employment law prohibits religious discrimination in every aspect of employment, including recruitment, hiring, promotion, wages, benefits, work assignments, performance evaluations, training, transfer, leave, discipline, layoffs, discharge, and any other term, condition, or privilege of employment.
What must employers do to accommodate an employee’s religious beliefs?
The law requires an employer to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice the employee’s religion. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
What are employers required to do to accommodate an employee’s dress and grooming policies based on their religion?
Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).
When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.
What constitutes an “undue hardship” on an employer?
An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Religious Discrimination and Employment Policies/Practices
An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.
What is “retaliation”?
Retaliation is any adverse action taken against an individual for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit related to discriminatory employment practices based on race, religion, color, national origin, sex, age, disability, genetic information, political affiliation or because of opposition to employment practices in violation of the unlawful workplace harassment policy.
Is it illegal to harass someone because they complain about job discrimination or talk to HR or an enforcement agency?
Yes. The law protects employees from being harassed because of filing a job discrimination complaint with their employer, reporting discrimination to others, or helping someone else report job discrimination, even if it turns out the conduct was not illegal.
What does “gender identity” mean?
Gender identity means a person’s knowledge of themselves as male, female, or another gender, regardless of the gender they were thought to be at birth.
What does “gender expression” mean?
Gender expression means characteristics and behaviors that may be perceived as masculine or feminine, such as appearance, clothing, hairstyles, mannerisms, speech patterns, and social interactions.
What does “transgender” mean?
Transgender is a term to describe people whose gender identity and/or gender expression is different from their sex assigned at birth. Some people described by this definition don’t consider themselves transgender – they may use other words or may identify simply as a man or woman. A person does not need to identify as transgender for nondiscrimination policies to apply to them.
What does gender transition mean?
Gender transition means the time period during which a person begins to live according to their gender identity, rather than the gender they were thought to be at birth. Gender transition looks different for every person, and not all transgender people transition. Depending on an individual’s needs and resources, transition may include asking people to use a different name or pronoun (like “she,” “he,” “they,” or other pronouns), changing clothing or appearance, changing identification documents, and/or accessing medical treatment such as counseling, hormone therapy, or different types of surgery.
Which names and pronouns should employees be addressed by?
All employees have the right to be addressed by the name and pronoun corresponding to their gender identity, as indicated by the employee. A court-ordered name or gender change is not required. Accidental or inadvertent misuse of pronouns does not constitute harassment; however, persistent and intentional refusal to use an employee’s preferred name and pronoun may constitute harassment. If you are unsure what name or pronouns are preferred by the employee, politely ask them how they would like to be addressed. Pronouns include “he,” “she,” gender-neutral pronouns such as “they,” or other options.
Which name and gender should personnel records reflect?
Most records can be changed to reflect the requested name without proof of a legal name change. An employee’s name on email accounts, employee directories, business cards, ID badges, name tags, and similar items will be updated to their requested first name or initial of their first name, even if the person has not had a legal name change. Medical documentation should never be required to update the gender marker of an employee on their records. Any photographs of the employee should also be updated, if necessary, to reflect the gender identity and expression of the employee.
Certain types of records, such as those relating to payroll and retirement accounts, may require a legal name change before the name can be changed. These records shall be updated promptly after presentation of a legal name change. To the greatest extent permitted by law, management shall ensure records that do not reflect a name that corresponds to an employee’s preferred gender identity are kept confidential. Such records should only be shared with individuals who have a compelling need to access them or for whom the employee has granted express permission.
How should issues of confidentiality and privacy be handled?
Transgender employees have the right to discuss their gender identity or expression openly or to keep that information private. The employee has the right to decide when, with whom, and how much to share their private information. Information that may reveal an employee’s transgender status should only be shared with another employee where it is necessary for the employee to do their job (e.g. human resources staff) or with the consent of the transgender employee.
Management and human resource staff may not single out transgender employees for intrusive requirements, such as psychological or medical examinations based on their transgender status.
Who should have access to gender-specific facilities?
No employee may be prevented or discouraged from using workplace facilities in a manner consistent with their gender identity. No medical or legal proof of gender shall be required to access a facility consistent with one’s gender identity. Employees, including employees whose gender is not male or female in addition to transgender men and women, shall determine the facilities most consistent with their gender and needs.
Any employee who has a need or desire for additional privacy, regardless of the underlying reason, can make use of alternative arrangements, when feasible. Alternative arrangements include single-occupancy restrooms, private areas for changing, a different time to use the locker rooms, or other alternatives, where possible.
Single-occupancy restrooms shall be designated as gender-neutral, except where located within a gender-segregated facility.
How should employees be required to dress as it pertains to their gender identity?
All employees are permitted to comply with the dress code in a manner that is consistent with their gender identity (including maintaining a gender-neutral appearance if applicable). Any employee dress code and/or grooming standards should be gender-neutral (i.e. rules should apply to all employees equally without regard to gender).
What about jobs with sex-specific job duties?
In the narrow circumstances where sex is a bona fide occupational qualification (BFOQ), all employees should be classified and assigned in a manner consistent with their gender identity. Any BFOQ must be applied consistent with the principle that employees are able to live and work in accordance with their gender identity. Assignment of job duties or disqualification from a position based on an individual’s transgender status, related medical history, or non-conformity with gender stereotypes is not permitted. Management should consult with their legal counsel if there are questions regarding job duty assignments.
How should transitioning on the job be handled?
All employees who are transitioning, shifting gender expression, or otherwise have needs related to their gender identity can expect the support of management and human resources staff. HR will work with employees individually to ensure a successful workplace transition, including by developing a procedure for adjusting personnel and administrative records, developing an individualized communication plan to share news with coworkers and clients as needed, determining with whom information can or cannot be shared, or navigating any other needs related to the employee’s transition or transgender status.
How should hiring practices address applicants who are transgender?
Applicants may use the name and gender consistent with their gender identity in an application, regardless of whether they have undergone a legal name change or changed the gender marker on their identification. Hiring practices shall not require disclosure of an applicant’s transgender status or sex assigned at birth.
Inquiries about legal names or prior names used should only be made after completing the initial job interview, when related to a BFOQ or when necessary for legitimate business reasons. All requirements must be equally applied.
Who is protected by military service member and veteran discrimination laws?
The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), as amended, prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. The act protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training. The Vietnam Era Veterans Readjustment Act of 1972 prohibits certain government contractors from discriminating against qualified disabled veterans or Vietnam era veterans. The act also requires contractors to engage in affirmative action to employ and advance veterans in employment.
Who is a veteran?
A veteran is a person who served in the Armed Forces of the United States on active duty, for reasons other than training, and was discharged under other than dishonorable conditions.
Is the employee required to get permission from their employer before leaving to perform military service?
No. The employee is not required to ask for or get their employer’s permission to leave to perform military service. The employee is only required to give the employer notice of pending service.
Must the employee give advance notice to their employer for a leave of absence due to military service?
Yes. The employee, or an appropriate officer of the uniformed Service in which the employee’s service is to be performed, must notify the employer that the employee intends to leave the employment position to perform military service. If the employee has more than one employer, each employer must be notified of the impending leave of absence due to military service.
USERRA regulations provide that an “appropriate officer” can give notice on the employee’s behalf. An “appropriate officer” is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military branch concerned. The employee’s notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any format.
Although USERRA does not state how far in advance notice must be given to the employer, an employee should provide notice as far in advance as is reasonable under the circumstances. The Defense Department “strongly recommends advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”
Must the employee tell their employer prior to leaving that they will seek reemployment upon completion of military service?
No. When the employee leaves the employment position to begin a period of service, they not required to tell the civilian employer that they intend to seek reemployment after completing uniformed service.
Even if the employee tells the employer before entering or completing uniformed service that they do not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service.
When is an employee entitled to be reemployed by the employee’s civilian employer?
The employer must promptly reemploy the employee when he or she returns from a period of service if the employee meets USERRA’s eligibility criteria. “Prompt reemployment” means as soon as practical under the circumstances of each case. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment. For example, prompt reinstatement after weekend National Guard or Reserve duty generally means the next regularly scheduled working day. On the other hand, prompt reinstatement following several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee’s position.