November 14, 2022 Article

New EEOC Poster Requirement and Guidance on Notice-Posting in Hybrid Workplaces

The U.S. Equal Opportunity Commission (“EEOC”) recently updated the “EEO is the Law” poster and replaced it with a new one: “Know Your Rights: Workplace Discrimination is Illegal.” The new poster was initially released on October 19, 2022 but was replaced by an updated version on October 20, 2022.  Although no firm deadline has been set for replacing the poster, the EEOC expects covered employers to update their posters within a reasonable amount of time.  When you update your poster, be sure to use the version marked as Revised 10/20/2022.

By way of background, the EEOC enforces several federal laws (e.g., Title VII, ADA, ADEA, GINA) that prohibit discrimination and that require covered employers to post a notice summarizing the law and explaining how employees or applicants can file a charge based on discrimination.  To streamline notice-posting compliance efforts under these laws, the EEOC requires covered employers to prominently display a single poster made by the EEOC that includes information about discrimination based on race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion, age, equal pay, disability, genetic information, and retaliation. 

The new “Know Your Rights” poster differs from the old “EEO is the Law” poster in several ways.  The new poster uses plain language and bullet points to more effectively inform workers about their legal rights and how to contact the EEOC for assistance.  Substantively, the new poster adds information about equal pay discrimination for federal contractors, adds harassment as a prohibited form of discrimination, and clarifies that sex discrimination includes discriminated based on pregnancy and related conditions, sexual orientation, or gender identity.  Through a QR code on the hard-copy version and a direct link on the digital version, the new poster also improves access to the EEOC webpage on how to file a charge.

Covered Employers

Generally, federal law requires private sector and state and local government employers with 15 or more employees to comply with this notice posting requirement.

Penalties

Failure to comply is punishable by a fine of $612 for each separate offense.  However, the fine is likely to increase in 2023 as a result of the annual adjustment for inflation.

Compliance Best Practices

Keep in mind that even if a significant component of your workforce is remote, covered employers still need to place posters in a conspicuous location in the physical workplace where notices to applicants and employees are customarily posted.  The EEOC’s guidance issued in conjunction with release of the new poster states, however, that employers are also encouraged to post the notice digitally on their websites.  Electronic posting should supplement and not replace physical posting unless there is no physical workplace location and all employees telework. 

The EEOC has tailored different versions of the “Know Your Rights Poster” for online or physical posting.

It is a good idea to pay attention to accessibility issues when complying with the poster requirement.  The Americans with Disabilities Act (ADA) requires that employers place the poster in physical locations that are accessible to applicants and employees with disabilities that limit mobility.  Employers should also make printed notices available in an accessible format to persons with disabilities that limit the ability to see or read.  For example, employers that post the version of the poster optimized for screen readers to their websites are more likely to ensure access for employees and applicants with disabilities that require use of screen reader technology (e.g., blindness, visual impairment).  Notices can also be recorded on an audio file or read to applicants or employees with such disabilities.

The EEOC is also translating the poster into other languages, which will be available on its website.  In the meantime, the poster is available in Spanish.

This alert only addresses the posting requirement for federal discrimination laws.  Remember to periodically check to make sure your organization complies with all applicable state and federal posting requirements. 

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