Retail Giant Faces Tough Questions About Employee “Look Policy”

Click here to see the recent update from Wilson Worley PC on the EEOC case involving the extent of an employer’s ability to set dress codes or “physical appearance” policies. The U.S. Supreme Court is expected to rule this summer.

Job Descriptions in Relation to the ADA

One of my posts from this summer stated that job descriptions are important because they set out expectations about a given position.

Specifically, descriptions are important under the ADA as well. They provide a framework to review whether an applicant with a disability is otherwise qualified to perform the job. They, then, allow the employer to consider what accommodations would be necessary for the applicant to handle the essential functions of the job. That, in turn, leads to clarity on whether accommodation would be reasonable.

The ADA has no express requirement to adopt job descriptions; however, the law requires that applicants and employees be capable of performing the essential functions of the position, with or without reasonable accommodation. When defining essential job functions, the EEOC reviews job descriptions written before an employer advertises a job opening. Thus, employers should be accurate in reflecting those essential functions, and generic wording does not provide sufficient detail when questions arise.  Describing the specific tasks that a position requires allows for compliance with ADA and EEOC guidelines and a basis to defend your actions if you are questioned.

Anniversary of Brown v. Board of Education of Topeka, Kansas

In 1954, the United States Supreme Court released its unanimous opinion that found laws in several states requiring separate but equal educational institutions for African-Americans and whites violated the Fourteenth Amendment’s Equal Protection Clause.  Chief Justice Earl Warren framed the question as “the constitutionality of segregation in public education,” saying, “[w]e have now announced that such segregation is a denial of the equal protection of the laws.”  The Court ruled on cases from four states but the practice occurred in many more.

While the opinion did not have an immediate impact on the workplace, it was a precursor to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

EEOC Report on Discrimination 2012

The EEOC has released its Performance and Accountability Report summarizing its fiscal year 2012.  The EEOC reports a record level of recovery in discrimination matters for the year.  The organization filed 122 lawsuits throughout the country with 20 percent of agency cases involving systemic allegations against the defendant.  Administrative enforcement (mediation, settlements, conciliation) in the private sector amounted to $365,400,000.  Through litigation, the agency recovered $44,200,000.

Input for EEOC Quality Control Plan

The EEOC recently approved its Strategic Plan through 2016 and is now seeking input from the public on developing a Quality Control Plan (QCP) related to investigations and conciliations.  One performance measure under the Strategic Plan requires the QCP.

The EEOC requests information from individuals, employers, advocacy groups, agency stakeholders, and other interested parties.  Input must be provided by March 1, 2013.  The Agency will review the input and make appropriate portions available for meetings used to develop the QCP.  Some submitters may be invited to testify before the Commission.  The Agency’s February 12 press release is available by clicking here.

New Wilson Worley newlsetter available on requesting psychological counseling

Wilson Worley attorney George Samuel asks, “Is Requesting Psychological Counseling the Same as Requesting a Medical Exam?”  For his discussion of the recent Sixth Circuit Court of Appeals opinion in Kroll v. White Lake Ambulance Authority, click here.

Transgender protection and Retaliation through job offer

Wilson Worley employment attorney Sam Booher discusses two recent employment law developments:   (1) A recent EEOC release states that transgender individuals are protected from discrimination under Title VII; (2) A recent federal circuit court decision finds that making a job offer contingent on withdrawal of an EEOC charge of discrimination is unlawful retaliation.  For the complete discussion in the newsletter, follow this link to the Wilson Worley website.

ADEA Final Rule

You may have missed it with all the discussion of the NLRB rulings, healthcare reform act litigation, and immigration rulings; but the EEOC released a final rule earlier this year on the ADEA.   At the end of March, the EEOC issued the regulation on disparate impact and “reasonable factors other than age” under the ADEA.  The final rule makes clear that federal law prohibits practices and policies that have the effect of harming older works more than younger ones, unless the employer can establish that the practice or policy is based on a reasonable factor other than age.  In a press release, the EEOC stated, “The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law.  The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”  The EEOC has also created a Q&A page on the issue; you can view it by clicking here.

Ways to Minimize EEOC Risk Using Background Checks

The EEOC has noted that use of criminal background information in hiring decisions can result in discrimination against protected classes.  The use of criminal records for employment decision making is not prohibited by federal law.  Still, an employer may be required to establish how the use of criminal records is “job related and consistent with business necessity.”

There are several steps that an employer can take to reduce the risk of utilizing criminal records when making employment decisions:

1. Adopt a written policy or procedure for using criminal conduct in the review of candidates and employees;

2. Obtain criminal record reports  that are “job related for the position in question and consistent with business necessity”;

3. Employ individual review questioning whether the screening process is job-related and consistent with business necessity;

4. Train management and those involved in employment decisions regarding the company policy or procedure;

5. Maintain confidentiality for all criminal records; and

6. Follow the policy or procedure that is adopted.

EEOC Guidance on Background Checks

As I have commented before, the use of background checks by employers has increased significantly in recent years.  There are now services everywhere, and the cost for these checks has dropped significantly.  With the studies that document the cost to replace an employee, employers are looking to any means to screen candidates more effectively.    The EEOC has cited studies that indicate as many as 90% of applicants undergo criminal background checks.

With that backdrop, the EEOC has provided Enforcement Guidance No. 915.002 regarding the use of criminal background information.  This document does not alter the legal framework that covers background checks but sets out several points for consideration by employers.

Because certain racial and ethnic groups may be incarcerated at a higher statistical rate than others, use of criminal history for employment decisions could result in discrimination under Title VII.  This discrimination would arise under one of two theories:  disparate treatment or disparate impact.  For disparate treatment, an employer treats a person differently because of race or national origin (allowing “group-related stereotypes” or allowing a non-minority applicant to explain criminal history while not allowing a minority candidate to do so).

For disparate impact, a policy or practice that seems neutral on its face may discriminate if it serves to screen out a protected group in a disproportionate way, and the policy or practice is not specifically job-related for the position and necessary to business.  The EEOC has found that national data for arrest and incarceration rates for African Americans and Hispanics are sufficient for a finding of disparate impact for those protected groups when using criminal background data without job-related conditions.  That finding shifts the burden of proof to the employer to show no disparate impact but can be contradicted by local data or information by a particular employer about its own hiring practices.   There are a number of factors to review, and the EEOC draws a sharp contrast between convictions and arrests.  For further information, the EEOC Guidance can be accessed by clicking on this link:  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.