Posts belonging to Category EEOC



Another EEOC Setback in the Courts

I can’t help but think this latest slap on the wrist of the Equal Employment Opportunity Commission (as documented by HR Morning) will only embolden the agency.

121266265-soc media and hiringThat has been the sentiment after past EEOC court defeats, including this one I blogged about several months back.

In this latest case, a federal appeals court upheld the dismissal of a lawsuit filed by the EEOC against Kaplan Higher Education Corp., claiming the company improperly used credit histories to screen job applicants.

The agency claimed Kaplan discriminated against black candidates applying to senior-executive, accounting and other financially sensitive positions. The EEOC, meanwhile, hired a third party to prove the credit checks had a disparate impact on black applicants, but the court found the third party’s research process — which included examining driver’s licenses to determine race, a technique it calls “race rating” — was flawed and unreliable.

What’s more, the court found, the EEOC was making charges about a background-check technique it employs. And that’s not all the problems found by the court.

As quoted from the ruling, care of HR Morning:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.

… We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”

This piece from Forbes offers additional details and perspective about the case.

From my limited perspective, I’m starting to see enough of these failed EEOC prosecutions to think the agency might have better luck returning to the old days of helping employers comply rather than looking for ways — even paying third parties to find ways — to nail them.

EEOC Shares Tips on Background Checks

handcuffsSome would argue the EEOC’s guidance on the use of criminal background check information offers more confusion than clarification for employers.

Critics—including a group of nine state attorney generals that penned a letter detailing its grievances to the EEOC—contend the agency’s regulations unduly burden employers with costs, could actually create more opportunities for discrimination, and may circumvent many state laws with respect to background checks for employment purposes.

The EEOC has made efforts to address such concerns. In September 2013, for example, the agency responded to the aforementioned letter, explaining its recommendation that employers use a two-step process for job applicants—including individualized assessment as the second step—rather than relying on bright-line screens alone.

Earlier this week, the EEOC—along with the U.S. Federal Trade Commission—made another attempt at shedding light on the subject, offering tips to employers and job seekers alike, in the form of two technical assistance documents.

The organizations issued the documents—one for employers, one for job applicants and employees—in an effort to “explain how the agencies’ respective laws apply to background checks performed for employment purposes,” according to an EEOC statement.

For example, the EEOC advises employers to “be prepared to make exceptions for problems revealed during a background check that revealed a disability. … If you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job—despite the negative background information—unless doing so would cause significant financial or operational disability.”

The document also reminds organizations of their responsibilities before taking an adverse employment action, such as supplying an applicant or employee a notice that includes a copy of the consumer report the company used in reaching its decision, and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

The publication geared toward employers does contain some “helpful reminders for employers who pursue background checks on applicants or employees,” says Rachel Reingold Mandel, a shareholder in the Boston office of labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

The information presented in the document is especially useful in light of FCRA requirements “[losing] the spotlight recently,” says Mandel, “as the EEOC and state law anti-discrimination focus has gained traction.

“This publication helpfully reminds employers that it is important to both use background checks in ways that do not discriminate based on protected characteristics—race, color, sex and national origin, for example—and to follow [FCRA’s] technical requirements.”

Organizations and HR leaders “have worked to balance their obligations under the federal Fair Credit Reporting Act against their obligations under applicable anti-discrimination laws, including those enforced by the EEOC,” she says.

“This publication provides a helpful guide to the steps employers should follow to comply with both the FCRA and federal anti-discrimination laws,” continues Mandel, adding that employers would be wise to ”keep in mind separate state-specific laws, including those that prohibit asking any criminal background questions on employment applications.”

More Restrictions on Criminal-Background Checks

California appears to be the latest state to join the criminal-background-restriction bandwagon. A new law enacted last month amends the California Labor Code to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.

gavel and handcuffs -- 162424875“The good news is that [the law] doesn’t break entirely new ground, but instead modifies existing law,” says Brian Inamine, a LeClairRyan labor and employment attorney and shareholder in the firm’s Los Angeles office, in this release about it. “The bad news is that it represents one more hurdle that businesses have to contend with.”

Indeed, as my Nov. 13 news analysis on HREOnline points out, the hurdles are racking up. To date, 43 cities, counties and municipalities, and 10 states have passed “ban the box” legislation for public-only or public and private employers, making questions about criminal convictions on job applications illegal.

What’s more, as that story points out, there’s still a lot of confusion about what’s required of employers under the U.S. Equal Employment Opportunity Commission’s guidelines on criminal-background checks.

Actually, as it says, nothing’s really required. There’s no federal law being dictated in the guidelines, but failing to follow them could lead employers to discrimination charges under Title VII of the 1964 Civil Rights Act, which the guidelines are based on. The EEOC maintains criminal-history checks disproportionately impact minority candidates. For a rundown of some of the events and issues leading up to the EEOC’s guidelines, take a trip here through some of our earlier blog posts.

Another recent news analysis of mine looks at an additional potential punishment, under the Fair Credit Reporting Act, that Disney recently found itself ensnared in. In a class-action lawsuit, Culberson vs. The Walt Disney Company, Robert L. Culberson claims Disney illegally barred him from employment by failing to provide him with the proper adverse-action notice — required by the FCRA when an adverse-employment decision is based on any portion of a background check.

In that case, Culberson’s background check showed a criminal conviction on a battery charge from 1998 — when he was 19 years old — that had been expunged from his record in 2010. He claims he was not given the opportunity to correct the information before the company decided not to hire him, nor did Disney re-evaluate his application after the background-screening company, Sterling Infosystems Inc., eventually removed the conviction from his record and issued a new report.

As the new California law reminds us, and as the sources in all these linked stories and posts underscore, make sure you know what criminal-background laws govern the jurisdiction(s) you’re in and — equally important — what other laws might come in to play should you fail to follow proper procedures.

 

 

Is Anti-Unemployment Discrimination Going Global?

I received an interesting email the other day suggesting the European Union may be in the early stages of adopting legislation to classify individual unemployment as an equal-employment-opportunity issue.

134518530 -- unemployedActually, according to the source, Brussels, Belgium-based Ius Laboris, the suggestion is more like a tiny whisper, but it is safe to say the EU’s general directorate has expressed interest in passing pan-European legislation to classify individual unemployment as an EEO matter.

“In essence,” the email says, “this would mean ‘unemployment’ was a protected category on a par with race or religion, prohibiting employers and employment agencies from asking employees about their current employment status in a job interview, and creating the threat of legal action if a business was demonstrated to have discriminated against an applicant on the basis of unemployment.”

Not sure where this is going and/or in what time frame, IL’s spokesperson tells me. And though it comes on the heels of similar moves across the United States, it’s hard to tell how far the anti-unemployment-discrimination momentum will take us on this side of the pond either.

At the time I wrote this news piece on New York’s passage of such legislation, this is where things stood here: “New York City is only the most recent jurisdiction where legislative action has been taken to protect the unemployed. States that have already passed laws against such discrimination include Oregon (passed in March 2012) and New Jersey (2011). The District of Columbia passed a similar bill in May 2012. And as of May 2013, five states — New York, Pennsylvania, Massachusetts, Iowa and Minnesota — have introduced bills during the 2013 legislative session, with another 17 states considering doing so.” Sources tell me this is still the case.

Wondering how this trend will be impacted if the unemployment figures continue to suggest steady job growth, as noted in this Associated Press piece released Wednesday.

Whatever the case, I’m compelled to share with you HREOnlineTalent Management Columnist Peter Cappelli’s column from several years ago, advising against such discrimination because it simply doesn’t make business sense.

 

 

Will the EEOC Be Updating National-Origin Guidance?

There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.

177818736-- public meetingSuch is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.

In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”

In his blog post, Kehoe describes some of testimony on both employer and employee sides:

Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”

He also explains what’s at stake:

Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”

And in signing off, he provides some worthy employer caution:

Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”

 

 

 

Religious-Discrimination Claims Rising

Muslim woman at workAccording to a recent Wall Street Journal piece, The Equal Employment Opportunity Commission received 3,811 religious discrimination complaints last year.

While this number represents a dip from the record 4,151 religious-discrimination claims brought to the EEOC in 2011, the article notes that religion-based complaints have more than doubled in the past 15 years, and are growing at “a faster clip” than claims involving race, age, sex or disability, for example.

Part of this uptick “comes from employees—Muslims, Christians, Seventh-Day Adventists and others—who were denied requests to avoid work on Sabbath days,” according to the article. “Conflicts have also erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

In September, for instance, New Albany, Ohio-based clothing chain Abercrombie & Fitch settled EEOC lawsuits involving two Muslim women and their hijabs, the veils typically worn to cover the head and chest of Muslim females. In one case, former employee Umme-Hani Khan said she was fired after an A & F manager said her hijab violated the company’s “Look Policy” dress code. The other suit alleged Abercrombie refused to hire an applicant who wore a hijab. Per the settlement, the retailer will inform applicants that exceptions to its “Look Policy” may be available, and must also regularly review its religious accommodation decisions and report to the EEOC twice annually.

Also in September, the EEOC sued Canonsburg, Pa.-based Consol Energy Inc., alleging the company pushed a long-time employee to retire after he objected to using a new biometric hand scanning device that tracks employee time and attendance. According to the claim, the employee repeatedly told mine officials that submitting to a biometric hand scanner violated his beliefs as an Evangelical Christian, and wrote a letter explaining the relationship between hand-scanning technology and the Mark of the Beast discussed in the Book of Revelation of the New Testament.

Earlier this year, the EEOC filed a suit charging that Star Transport Inc. refused to provide two employees with an accommodation of their religious beliefs when it terminated their employment because they refused to deliver alcohol.

Despite the growing number of religious discrimination complaints being brought to the EEOC, it remains a small number that actually reach the litigation stage. In fact, the EEOC filed nine religion-based lawsuits in fiscal year 2012, a drop from 15 in 2011 and 24 in 2010.

Still, settlements of religious discrimination claims such as those leveled against Abercrombie & Fitch often oblige companies to provide training and meet other requirements, as seen in Abercrombie & Fitch’s case. Other organizations may be wise to take note, as these settlements should serve “as a teaching example for other employers,” Jeanne Goldberg, senior attorney advisor with the EEOC, told the Wall Street Journal.

Crossing Over to the Daaahhhrk Side … Mwahahaha …

Thought this might make for a good Halloween post — a piece written by Merrily Archer, founder, president and CEO of Denver-based EEO Solutions and a former trial attorney for the U.S. Equal dv1137057-- dark sideEmployment Opportunity Commission. It’s all about … (steady your hobgoblin nerves) … the pro-employer daaahhrk side (insert eery music and a witch’s cackling howl).

Actually, the only scary part of Archer’s post is her first subhead — you guessed it: “The Dark Side.” Alarming, though, is the deep divide she describes between those going after the “evil” employers — those “villains” accused of discrimination, harassment, etc. — and the employers (and HR departments) themselves, simply trying to survive and comply in a “victim”-sided system.

Whatever faction you favor, you have to admit Archer knows each one well — each side of the ever-widening “good-guy/bad-guy” chasm, as she describes it. She’s walked and lived them both. Here’s a small reflection on her stint as an “employer-hater”:

I’d grown accustomed to the rhetoric: The EEOC and [Plaintiff Employment Lawyer Association] people did ‘God’s work’ and helped ‘victims’ of discrimination. By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.”

And a sampling of her growing disenchantment and concern that all was not necessarily right with the ship she happened to be on:

After doing ‘God’s work’ at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about ‘God’s work’ and ‘changing hearts and minds through litigation’ often just masks ego and greed; (3) the identity of the righteous ‘good guys’ is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things. Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the ‘Dark Side,’ even the ‘Forces of Evil.’

And here’s what she witnessed and went through as HR practitioners fell prey to governmental aggression:

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast — and treat — HR managers as incompetent boobs or raging racists. After hours of intense deposition questioning, this treatment could make most HR practitioners cry … . As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights. But to the EEOC and employee-side counsel that perpetuate [that] victim/villain paradigm, the inherent ‘evil’ of discrimination justifies their abuse of other humans accused of it. When you’re doing God’s work, after all, all is allowed.”

Lastly, as an attorney criticizing attorneys, she argues in favor of both sides uniting to rid workplaces of working conditions that, in many cases, definitely do need to change:

In theory, the EEOC, employers, civil-rights groups, and the HR community share much common ground in advancing equal-employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys. Employment discrimination, workplace inclusiveness and the costs to employers of EEO disputes are complex, multifaceted social problems that deserve more analysis than victim/villain caricatures. Our progress toward full inclusiveness, after all, depends on our ability to find common ground, not deepen divides.”

Granted, other voices deserve to be heard on this apparent and troubling divisiveness between the EEOC and the employers it was created to keep an eye on. But Archer’s alone sure sheds some illuminating light on a problem I, for one, didn’t know much about: the other “victims” on the ”dahhrrk side” of business.

A Broader Definition of ‘Reasonable Accommodation’

Meanwhile …

As the nation stays riveted on Washington’s dramatic avoidance of a default/continued-shutdown guillotine, I’ll venture to point out that legal events impacting employers have 93424272-- handicap parkingbeen rumbling along in other rings of this governmental circus.

A posting about this recent case, for instance, caught my eye — a ruling from the Fifth Circuit Court of Appeals that further broadens the Americans with Disabilities Act’s definition of “reasonable accommodation” to include — well, sort of — granting a free on-site parking space so an employee has an easier time getting to the door.

The ruling in the case, Feist vs. State of Louisiana, essentially takes employers beyond the ADA requirement that an employee be accommodated so he or she can accomplish the essential functions of the job to now include a guidance from the U.S. Equal Employment Opportunity Commission saying reasonable accommodation must include anything that enables workers “to enjoy equal benefits and privileges of employment.”

In this case, yes, a free parking spot — which Assistant Attorney General Pauline Feist requested of her employer, the Louisiana Department of Justice, due to osteoarthritis in her knee. (According to the case, she was denied the spot by her employer, filed a discrimination charge with the EEOC, was later fired for poor performance, and filed suit in the Fifth Circuit’s district court, claiming disability bias and retaliation. The district court ruled in favor of the Louisiana DOJ, but the appeals court took her side, essentially saying there was more to her accommodation than simply allowing her to do the essential functions of the job.)

“In short, the court said, there doesn’t need to be a link between an employee’s essential functions of a job and a request for reasonable accommodation,” writes HRMorning.com‘s Dan Wisniewski in his post.

He cites this HR takeaway from Christopher Ward, writing on the Labor & Employment Law Perspectives blog:

The Fifth Circuit’s decision … follows a clear trend suggesting that employers must take a broad view of their obligations with respect to disabled employees. Following the Court’s conclusion, an employer’s accommodation analysis is not limited to an evaluation of whether a potential accommodation is reasonable as measured against an employee’s job functions; instead, the focus should be simply [on] whether the potential accommodation is reasonable … . Prudent employers should thus focus their accommodation analyses more on the reasonableness of potential accommodations themselves and put less emphasis on the accommodation’s impact on the employee’s ability to perform his or her job functions.

Just more to focus — or refocus — on as you let out the breath you’ve been holding, wondering if there’d be a government looming over you at all.

Beware a Fired-Up EEOC Following Legal Setback

Although a case lodged by the U.S. Equal Employment Opportunity Commission against Dallas-based Freeman Cos. was dismissed by a Maryland federal judge back on Aug. 9, this warning last gavel and handcuffs -- 162424875week from a background-screening company suggests HR better stand tall, get prepped and be ready for an even-more aggressive EEOC because of the dismissal.

The United States District Court of Maryland dismissed the EEOC’s disparate-impact suit over alleged discriminatory background checks without trial because of flaws it found in the EEOC’s case —including unreliable expert testimony and failure to attribute any supposed disparate impact to a specific employment practice.

A Sept. 10 release by CriminalBackgroundRecords.com says the loss “represents a setback in the EEOC’s efforts to enforce the use of criminal histories as part of pre-employment practices as highlighted in EEOC guidellines.”

Yet, says Adam Almeida, that company’s president and CEO, “despite this ruling, the EEOC will continue to enforce [its] guidelines and may do so with greater veracity. Now, more than ever, is the time to review all background-screening policies … to remain compliant.”

His release includes a link to an article posted to BusinessInsurance.com, in which Pamela Q. Devata, a partner with Seyfarth Shaw in Chicago, is quoted saying that, if anything, the ruling “will cause [the EEOC] to become more focused on this issue.”

For a much more in-depth look at the case, here is an excellent and informative piece by Littler attorneys Rod Fliegal and Jennifer L. Mora. And here are two different links to the case itself: one from Google Scholar and another from the court itself.

In the meantime, Almeida’s release sums up nicely the precarious position all employers are in, waiting for clarity on the EEOC’s criminal-background guidance (which, Almeida says, was unfortunately not contained in this latest ruling):

Employers remain in the tricky position of [trying to decide] where and when to use criminal histories, and other specific reports, and in what specific circumstance[s] background-screening reports [can] be utilized.

By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.

EEOC Targets Genetic Discrimination

geneticsAlthough the Genetic Information Nondiscrimination Act (GINA) became law back in 2008, the EEOC — which enforces the law — has filed only two lawsuits since then charging employers with illegally asking employees/job applicants for their family medical histories.

One of those lawsuits — against Tulsa, Okla.-based Fabricut Inc. — was settled last week. The EEOC had charged the company with violating GINA by purportedly asking job applicant Rhonda Jones (whom it was considering for the position of memo clerk) for her family medical history as part of a post-offer medical exam. Fabricut asked Jones to — as a condition of its job offer — undergo an evaluation for carpal tunnel syndrome by her personal physician, and to undergo a pre-employment lab test and physical by its contract medical examiner. Although Jones’ doctor concluded she did not have CTS, the company says its medical examiner says she either had the syndrome or was predisposed to develop it, and it rescinded the job offer. Earlier this month, Fabricut agreed to settle the suit by paying $50,000 and offering other relief without admitting any wrongdoing.

Last week, the EEOC announced another GINA-related lawsuit, this one against Corning, N.Y.-based Founders Pavilion Inc., a nursing and rehabilitation center. According to the suit, the company conducted post-offer, pre-employment medical exams of applicants in which they were asked for their family medical history. The exams were repeated annually if the person was hired.

The EEOC also charged Founders with violating the Americans with Disabilities Act by firing one employee after refusing to accommodate her and refusing to hire two women because of perceived disabilities.

Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office, had this to say in a statement:

GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.”