Trends in Discrimination Law

Transcription

1 Trends in Discrimination Law A. Martin Wickliff, Jr. April 2015 *Paper was adopted from a prior presentation by David L. Barron

2 Agenda Latest EEOC Statistics EEOC Enforcement Guidance on Background Checks Emerging Trends Family Responsibilities Discrimination Pregnancy Discrimination Sexual Orientation/Trans-Gender Impact of Social Media

3 Latest EEOC Statistics

4 Number of EEOC Charges

5 EEOC Focus on Systemic Cases Systemic Investigations Completed Settlements Lawsuits Money Recovered $13M $40 $36.2M $9.6M 25% of EEOC litigation docket is class or systemic actions

6 Interesting EEOC Trends Texas is No. 1 state for EEOC charges (followed by Florida and California). About 75% of cases mediated at EEOC are successfully resolved Retaliation charges are most common allegation

7 EEOC Enforcement Guidance on Background Checks

8 EEOC Enforcement Guidance EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (April 2012)

9 EEOC Guidance Cont d Use of Arrests in Hiring Process EEOC Position is that such practices are discriminatory because of an adverse impact on minority groups But, employer can lawfully rely upon conduct, not fact of arrest, as disqualifying factor. Use of Convictions in Hiring Process Employers may not have blanket policies excluding those with convictions Risk of adverse impact on minority groups Must be job related and consistent with business necessity

10 Use of Criminal History in Employment Decisions EEOC wants employers to perform an individualized, multifactor analysis Suggested factors to consider: specific job duties time elapsed since offense age at time of offense seriousness of offense evidence of successful rehabilitation

11 Recent Lawsuits/Settlements 1) Party City paid $95,000 fine and required to remove criminal history inquiry from employment application (settlement with NY AG office) 2) Pepsi - $3.13M settlement with EEOC in 2012 EEOC found reasonable cause to believe that Pepsi s criminal background check policy disproportionately excluded African-American applicants 3) Bed, Bath & Beyond - $125,000 settlement with NY AG office in 2014 after an HR manager allegedly said that the company did not hire individuals with felony convictions

12 Employers Fight Back In 2013, EEOC filed suit against BMW alleging that its background check policies disproportionately excluded African-American applicants. BMW requested that the EEOC answer questions about its own use of background checks in hiring process EEOC resisted and lost. In 2014, Texas filed lawsuit against EEOC arguing that enforcement guidance would conflict with state s no-felon rule. The lawsuit was dismissed for lack of standing and is on appeal at Fifth Circuit. In February 2015, the Fourth Circuit upheld the dismissal of a disparate impact case involving credit and criminal checks against convention services company Freeman. The Court hammered the EEOC s expert for being utterly unreliable and making a mind-boggling number of errors. The Court criticized the EEOC s continued reliance on the expert after being discounted as unreliable by multiple courts.

13 Ban the Box Legislation These laws typically prohibit criminal history questions on initial written application forms/during initial interview/before conditional offer of employment. Existing state/city laws applicable to private employers: Massachusetts Hawaii Rhode Island Minnesota Philadelphia Baltimore Newark Buffalo, Rochester Seattle San Francisco Illinois (effective Jan 1, 2015) New Jersey (effective March 1, 2015) District of Columbia (effective October 2014)

14 Emerging Trends

15 Family Responsibility Discrimination Family Responsibility Discrimination (FRD) claims up by >400% from 2000 to 2010 In next 20 yrs, 40% of workforce will be caring for the elderly

16 Family Responsibility Discrimination No federal law explicitly prohibiting FRD State laws and city ordinances Alaska prohibits discrimination based on parenthood Executive Order prohibiting discrimination against federal employees based on parental status.

17 EEOC Guidance on Unlawful Treatment of Workers with Caregiving Responsibilities Title VII Different treatment of women with children/men with children Different treatment of women with young children Stereotyping of women as mothers (i.e. not available to work extra hours, etc.) Denial of leave to male caregivers v. women caregivers Stereotyping based on flexible work arrangement Pregnancy Discrimination Light duty for pregnant employees versus other temporary disabilities Stereotyping regarding interest in promotions, travel, overtime Americans with Disabilities Act (ADA) Association with family member who is disabled

18 Do You Have This Supervisor? Important job must be completed tomorrow high profile. Male is the only employee who is available today. Supervisor feels he can t ask female coworkers to work late because they have small children, and he can t discipline them for not being able to do so. Supervisor feels his hands are tied

19 Practical Steps to Stem The Tide of FRD Claims Examine policies and practices to ensure family friendly workplace policies are not viewed as stigmas Flex or part-time work schedules Telecommuting policies Ensure policies are applied appropriately and uniformly Train supervisors on FRD Train employees on appropriate conduct Incorporate family caregiving into anti-harassment training Train supervisors to avoid co-worker backlash

20 What to Do When Michael Becomes Michelle?

21 HERO Houston s HERO Ordinance Adds Sexual Orientation and Trans-Gender Status to Protected Classes

22 HERO Provisions 180 days to file complaint City will refer the complaint to the appropriate agency if the claim states a claim under existing federal or state law No right to civil damages No specific requirement regarding bathroom access

23 Price Waterhouse v. Hopkins Sex-stereotyping is a form of sex discrimination prohibited by Title VII: We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group

24 Lopez v. River Oaks Imaging & Diagnostic Group (2008) Employer in Houston, TX rescinded job offer to an employee after HR discovered she was really a he. Lopez transsexuality is not a bar to her sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, trans-sexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.

25 Justice Dept. Memo (2014) On December 15, 2014, the Justice Department issued a memorandum making clear its enforcement policy that federal discrimination laws should be interpreted as prohibiting discrimination based on gender identity. The EEOC issued a previous opinion in April 2012 holding that intentional discrimination against a transgender individual because that person is trans-gender is, by definition, discrimination based on sex. Note: On February 25, Dept. of Labor issued final FMLA regulations recognizing same sex marriage within definition of spouse.

26 Rise of Social Media

27 Monitoring Social Media What About the Employee s Right to privacy? States that prohibit employers from requiring employees or jobapplicants to provide passwords for social media accounts: Arkansas California Colorado Illinois Maryland Michigan Nevada New Jersey New Mexico Oregon Utah Washington

28 WHAT IF? A rejected applicant had one of these pictures on his/her public Facebook page?

29 Can You Follow Your Employees? Twitter wanted to share with the world how she felt about a job offer. Cisco was following :

30 Digital & Textual Harassment Internet s Social Media Cell phones/smartphones

31 90% of American adults have a mobile device

32 High Tech Revolution OMG, u look gr8 [T]ext messaging is the most revealing of the true thoughts the unretrained thoughts - of the harasser They bang it out real quick, late at night, after a couple glasses of wine. They don t think twice about it. And they make big mistakes Textual Harassment on the Rise The National Law Journal, July 20, 2009