While an array of well-publicized cases under federal discrimination laws have made employers well aware of the legal costs and ramifications of litigation under Title VII of the Civil Rights Act of 1964 (“Title VII”), the American with Disabilities Act (“ADA”), and/or the Genetic Information Nondiscrimination Act (“GINA”), the cost of failing to post proper notice of these laws may be less apparent, but is no less important. Under Title VII, as well as the ADA and GINA, which incorporate Title VII’s posting requirements, an employer must post, in a conspicuous and accessible location where notices are customarily maintained, a notice excerpting or summarizing the pertinent provisions of the laws and the employees’ rights thereunder. Should an employer fail to post such notices, it would be subject to a fine for its violation.
On Thursday, June 2, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”), published its final rule in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “Act”), which adjusted for inflation the civil monetary penalty for a violation of the notice-posting requirements of Title VII, ADA and GINA. 81 Fed. Reg. 35269. Specifically, the final rule increased penalties for failure to post violations by more than double the previous amount, from $210 to $525 per violation (a 150% increase). The new rule will go into effect on July 5, 2016 and the adjusted penalty will only apply to those penalties assessed after the adjustment’s effective date.
Further, under the Act, Federal agencies are now required to issue annual regulations “adjusting for inflation” the maximum civil penalty that may be imposed for a violation of a statute enforced by the agency in question. The periodic adjustments to the penalties will be calculated in accordance with the cost-of-living adjustment as detailed in Section 5(b) of the Act. While in the last ten years only a small percentage of the charges filed under Title VII, GINA and ADA, contained a notice posting violation, with the current increase in penalties and the potential further annual increases under the Act’s cost-of-living adjustment, employers would be well advised to protect themselves against liability.
What next? Employers should review their existing posters, both for placement and content, and update and/or post notices where necessary, to ensure compliance with this rule and reduce the possibility of a posting violation. A proactive approach is recommended to avoid unnecessary penalties.
If you have questions regarding this information, please contact one of the authors or your Seyfarth attorney.