Posts Tagged ‘discrimination’

EEOC Tests its Guidance on Use of Criminal Records

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Earlier this year, during the NFL’s scouting combine, an NFL team employee allegedly asked three prospective players about their sexual orientation.  Allegedly, one prospective player was asked whether he had a girlfriend, was married, or liked girls.  Toss a yellow flag on the field.  Parlaying employment law into football lingo, the penalties as follows:  illegal formation (of a quesiton); neutral zone infraction, unsportmanlike conduct, taunting, a palpably unfair act, and encroachment.

Such questions are likely to violate state and local laws that prohibit discrimination, based on sexual orientation, in hiring and employment.  For example, the New York State Human Rights Law makes it unlawful for employers to discriminate against or refuse to hire any individual because of sexual orientation and also prohibits employers form making any inquiry in connection with the prospective employment about an individual’s sexual orientation.  In fact, at least 20 of the NFL’s 32 teams are located in jurisdictions that similarly prohibit sexual orientation discrimination in hiring and employment.

Interestingly, the NFL’s 2011 collective bargaining agreement with its player’s union prohibits discrimination in hiring and employment based on sexual orientation , but the labor agreement does not appear to provide any protection to prospective players during the recruitment process.  Nonetheless, even without the protection of the collective bargaining agreement, it appears that such questions would still violate state or local law in nearly a third of the cities where the NFL has teams.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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In the case of Butt v. Carpenters & Joiners of Am., the Third Circuit recently held that the U.S. District Court for the Eastern District of Pennsylvania wrongly dismissed the claims of four black female carpenters who claimed that the Carpenters and Joiners of America discriminated and retaliated against them in making job referrals.

 

The four female carpenters asserted sex discrimination claims under Title VII of the 1964 Civil Rights Act and race discrimination claims under the Civil Rights Act of 1866 against the union, its business manager, and its business agent.  The plaintiffs also asserted Title VII and Section 1981 retaliation claims and at least one of the plaintiffs asserted race and sex bias claims under the Pennsylvania Human Relations Act.

 

The Third Circuit found that the lower court failed to properly consider certain factual issues and therefore the dismissal was improper.  One of the key facts had to do with the union’s agent allegedly telling one of the plaintiffs that “his people” were still out of work when she inquired about work.  The plaintiff interpreted the phrase “his people” to mean white men.  The lower court interpreted this statement to mean that the union’s agent did not identify with black female carpenters.  However, the plaintiff’s interpretation of the comment was the only interpretation that the appellate court could find on the record.  Thus, the appellate court found that the comment was enough to create a factual issue for trial on the discrimination claims.

 

As for the retaliation claims, the lower court took too narrow of a view of retaliation by focusing on retaliatory actions that resulted in a clear change in employment status.  According to the appellate court, the lower could should have also considered acts meant to keep workers from making discrimination complaints.  Here, the plaintiffs claimed that their reduction in hours was in retaliation for their direct complaints to the union, their EEOC discrimination charge against the union and their testimony before a Philadelphia advisory commission.  After two of the plaintiffs testified before the commission, the union’s agent sent the media a letter stating that two women had been laid off in the past because of poor performance.  Although the record contained little information about the letter that was sent to the press, the appellate court held that such action arguably could have sufficed as retaliatory action under the law and therefore the letter raised an issue of fact for trial.

 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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