Header graphic for print

Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Denver Gets Hit with a Mile High Damages Award

Posted in Class Actions, Employee Hiring

36106719 - competitive business concept

A Colorado federal judge recently ordered the City and County of Denver to pay $1.67 million to job applicants who alleged that Denver’s employment screening tests had a disparate impact on black and Latino applicants.  The class action was tried in an 8-day bench trial in April 2016 after Judge Krieger denied summary judgment.

Denver used ACCUPLACER tests published by College Board as pre-placement tests.  The tests were developed to place students in college-level courses and were not validated for use in making hiring decisions.

This case is a rather expensive reminder that any type of employment test must be validated for employment purposes.  The EEOC has issued guidance on the use of employment tests that provides some best practices for employers to follow.

The most important thing to think about is whether the test is really job-related.  In other words, does the test actually relate to job skills that are required for the job?  Then, the test must also be checked to insure that it does not have a disproportionate impact on any protected class.

Employers who have tests validated once cannot simply assume that the test is safe to use in perpetuity.  If job duties or skills have changed for the position for which the test is being administered, then the test should be re-validated.

Finally, employers should not just assume that because a test is simple it does not need to be validated.  Even a simple math test given to applicants who may handle money would need to be validated.

 

New EEO-1 Reporting Procedures: Time For Public Comment (Again)

Posted in U.S. Equal Employment Opportunity Commission (EEOC), U.S. Office of Federal Contract Compliance Programs (OFCCP)

Back in February, our Labor and Employment Department issued a Client Alert regarding efforts by the Equal Employment Opportunity Commission (“EEOC”) to revise and update employer responsibilities on  Form EEO-1, a longstanding joint information collection of EEOC and the U.S. Department of  Labor’s Office of Federal Contract Compliance Programs (“OFCCP”).  Currently, the form seeks from covered employers information on race, ethnicity, sex and job category.

25114193 - your comment counts words on a red suggestion box to illustrate the value and importance of feedback, opinions, suggestions and brainstorming ideas

The proposed changes, which would be fully implemented in 2018, would also require that salary information be provided for each employee.  The rationale behind the addition would be to uncover evidence of a pay gap between covered classifications and their peers.

Ahead of a second public comment period, the EEOC today released a copy of the new proposed form.  You may view the form here.

Our advice now is the same now as it was then.  Covered employers should begin by finding a mechanism to easily harvest the data, and address any technological deficiencies that hinder that collection as soon as possible.  There is uncertainly, especially given that it is a presidential election year, that the proposed changes will come to fruition.  But if the changes are ultimately implemented, employers need to begin to address the issue now so as not to be caught flat-footed.

As always, feel free to contact us with any questions.

EEOC Proposes Updated Guidance on National Origin Discrimination

Posted in Federal/State/Local Laws, General Employment Discrimination, National Origin Discrimination, Title VII, U.S. Equal Employment Opportunity Commission (EEOC), Uncategorized

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.

 

 

DOL Persuader Rule Enjoined

Posted in Uncategorized

We don’t normally talk a lot about NLRB decisions and rulings related to the NLRB on this blog.  However, in light of the importance of the DOL Persuader rule, we wanted to update you on events that have management-side attorneys jumping for joy.

6608700 - happy business couple jumping isolated over a white background

If you are thinking to yourself that you have no idea what the DOL Persuader rule is, the short version is that it would have directly impacted the advice that attorneys could give employers during union organizing campaigns as some of that advice could be deemed persuader activity under the Labor Management and Reporting Disclosure Act (“LMRDA”).  This rule would impact even non-unionized employers as it may apply to questions employers ask counsel about handbook policies such as non-solicitation provisions and progressive discipline policies that an employer wants to implement to thwart attempts at unionization.

The rule and the decision are discussed in more detail on the Firm’s Franchise Law Update. The decision can be found here: National Federation of Independent Business, et als. v. Perez.

The Court found that the rule was vague and intruded on employers’ First Amendment rights.  Although this is a significant victory for employers and their counsel, it may be temporary.  The decision will likely be appealed.

We will keep you posted.  In the meantime, if you have not already spoken to labor counsel about the potential implications of the rule, we recommend that you do so.

Breaking Up Is Hard To Do, But Firing Someone For It Is Illegal To Do

Posted in Employee Termination, General Employment Discrimination

Marriage is tough.  And with the divorce rate in the United States hovering around fifty percent, unless you work in a monastery, there are likely divorced individuals in your workplace.  This week, the New Jersey Supreme Court clarified that the New Jersey Law Against Discrimination’s protections for marital status protect those who are separated, in the process of divorcing, or divorced from discrimination in the workplace.

In a unanimous ruling, the court stated that unless an employer can show that it has a bearing on job performance or the workplace environment (unlikely), no recently uncoupled individuals can be the victim of discrimination or retaliation.  This also goes for job applicants.

divorce

The case stemmed from an ambulance corps in South Jersey, where a supervisor, who had recently carried on an affair with another individual in the office, went to management and warned them that an “ugly divorce” would soon follow.  The corps, taking this as an anticipatory sign that his job performance would suffer, terminated him.

The lesson?  First, do not inquire as to marital status of prospective employees.  Second, do not make assumptions that divorce proceedings will interfere with an individual’s job performance.  Finally, remember that there is no religious exception for this prohibition.  Even if divorce is frowned upon in the subjective opinion of the company, this will not hold up in court.

Feel free to contact us with any other questions regarding this topic.

Employee Leave Questions Got You Down?

Posted in Americans with Disabilities Act (ADA), Family Medical Leave Act, Leave Laws

Employee leave issues can be exceedingly complicated given the interplay between local, state and federal laws.  If you have questions, hopefully, I can help.  I will be giving a webinar through Lorman on June 23rd at 1 pm EST entitled “Legal and Practical Solutions for Accommodating Employees with Serious Illnesses.”

17568955_sI am pleased to be able to offer you a 50% discount off the normal prices.  To register, click the above link and put in the following discount codes.

Discount code: B5513783
Priority code: 15999

Hopefully, you can join me on Thursday.

 

New EEOC Guidance Details ADA Effects on Employer Leave Policies

Posted in Americans with Disabilities Act (ADA), Disability Discrimination, Leave Laws

In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons.  First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.

The Relevant ADA Requirements

Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”

Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.

An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.

So how does the ADA affect employer leave policies?

Equal Access to Leave                                                                                            

Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:

Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Leave as a Reasonable Accommodation

The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:

the employer does not offer leave as an employee benefit;

the employee is not eligible for leave under the employer’s policy; or

the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.

Potential Red Flags

The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.

Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies.  These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.

100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.

Bottom Line

In light of the EEOC’s new guidance on this topic, what should employers do?

  • Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
  • Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
  • Document, document, document.  Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
  • Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.

NLRB Strikes Down Ambiguous and Overbroad Workplace Rules

Posted in General Employment Matters

Bill Egan writes:

The NLRB has added to its rapidly expanding body of work addressing the permissible scope of workplace rules under National Labor Relations Act.  In the related cases of T-Mobile USA, Inc. and Communications Workers of America, et al, and MetroPCS Communications, Inc. and Communications Workers of America, the Board struck down over a dozen workplace rules of T-Mobile USA and its affiliate, MetroPCS Communications, Inc., on the ground that the rules were overbroad and employees could construe the language in the rules as chilling their rights under Section 7 of the NLRA.  Section 7 affords employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

In its opinion, the Board reiterated its position that even if a work rule does not expressly restrict protected activities, it is nonetheless a violation of the NLRA if “employees would reasonably construe the language to prohibit Section 7 activity.”  In reliance on that reasonable construction element, the Board found as ambiguous, and therefore overbroad under the NLRA, the following workplace rules:

  1. A requirement that employees “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management;”
  2. A prohibition against using company information or communication resources “in ways that could be considered disruptive, offensive, or harmful to morale;”
  3. A prohibition against using the employer’s information or communication resources “to advocate, discourage, or solicit for political causes or non-company-related outside organizations;”
  4. A prohibition against permitting “non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval of the employer;
  5. A prohibition against making detrimental comments about the company or its customers, products, services or employees;
  6. A prohibition against arguing with co-workers, subordinates, or supervisors;
  7. A prohibition against failing “to treat others with respect” and failing to demonstrate “appropriate teamwork,”
  8. A prohibition against making recordings in the workplace;
  9. The designation of the employee handbook as a confidential and proprietary document;
  10. The requirement that employees maintain the confidentiality of the names of employees involved in internal investigations;
  11. The non-exclusive imposition of a requirement that employees notify the employer if thea employee believes he or she was not properly paid wages, or was required to miss a meal or rest period (deemed invalid because it not did not also advise that employees may also seek outside recourse);
  12. The requirement to refer all media inquiries to the company without comment (deemed invalid because it did not exclude inquiries about wages and other terms and conditions of employment);
  13. The requirement that employees to sign a confidentiality agreement that classifies employee wage and salary information as confidential information not subjected to disclosure; and
  14. A prohibition against using or disclosing employee addresses, telephone numbers, and accessing such information without a business need to do so and without either the employer’s authorization or the employee’s consent.

The takeaway is that all employers must take particular care in their drafting of workplace rules, policies, and procedures, be they employee handbooks, policies and procedures manuals, or codes of conduct.  Section 7 protections extend to all non-supervisory employees, not just those in a union or seeking union representation. Work rules must be drafted narrowly and in a way that does not chill employees’ Section 7 rights, whether expressly, impliedly or even arguably.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

New Jersey Senate Delays Vote on Paid Sick Leave Bill

Posted in Sick Leave

Yesterday, the New Jersey Senate was set to vote on S799.  However, the bill was pulled from the agenda and no action was taken.  If passed, the bill would require “large” employers, those with 10 or more employees, to provide up to 9 days of paid sick leave per year.  Smaller employers will have to provide 5 days of paid sick leave per year.

Even if the bill passed the Senate and then the Assembly, it is unclear if Governor Christie would sign any paid sick leave law, especially as he has gone on record last week with not wanting to sign bills that he viewed as hostile to businesses in New Jersey.

We will let you know if there is further action on the bill by the Senate.

14741681_s

New Jersey Pay Equity Bill Vetoed by Governor Christie

Posted in Equal Pay

Today’s post comes to us courtesy of Asad Rizvi, a Labor and Employment associate in our Roseland office:

17813952_sGarden State employers are breathing a sigh of relief.  On Monday, May 2nd, Governor Christie conditionally vetoed a New Jersey pay equity bill that would have presented one of the most dramatic changes to the New Jersey Law Against Discrimination (“LAD”).  Senate Bill No. 992, which passed both houses of the State legislature earlier this year, sought to impose considerably greater liability on employers by surpassing the existing rules governing pay equity.  The veto struck out several of the distinguishing features of the proposed legislation that, in the Governor’s words, would make New Jersey a “liberal outlier.”

For one, the Governor rejected the proposal to adopt an unlimited statute of limitations that would lift the two-year cap on the recovery of back pay by employees subjected to sex discrimination in compensation or the financial terms or conditions of their employment.  Second, the Governor found that employers, in accordance with the law, should not be prohibited from compelling employees to consent to a shorter limitations period on claims under LAD as a condition of employment.  This prohibition, the Governor found “unduly constrains an employer and employee’s ability to negotiate the terms of employment.”

The Governor also rejected the legal standard proposed under Senate Bill No. 992, which prevents employers from engaging in an individualized “intensive fact-based evaluation” to defendant against pay equity claims.  The treble damages provision of the bill was also vetoed, as the Governor found it inconsistent with existing remedies under state and federal law which exclusively provide for back pay.  Finally, as he did in a prior legislative session,  the Governor found the new demographic reporting requirements imposed by the bill on State contractors to be unnecessary and disruptive to the State economy, calling it a “burdensome reporting mandate upon the businesses of this state.”

While employers may have won the battle for now, the war over pay equity is not over.  At the moment, the administration and legislature appear far apart in their negotiations over the bill.  However, State legislators have promised to keep pressing onward for the passage of this dramatic piece of employment legislation, which the Governor finds and employers would agree is “very business unfriendly.”  While the fight continues on in Trenton, employers seeking to review their pay practices should contact employment counsel.  Meanwhile, we will keep our eyes on Senate Bill No. 992.