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.
Update on ADA Accommodation
Attorney George Samuel of Wilson Worley has written a new article for our firm’s employment clients on a recent opinion from a federal circuit court of appeals on making reasonable accommodation for an employee under the ADA. He writes:
“The 6th Circuit Court of Appeals recently affirmed a District Court’s grant of summary judgment in favor of the employer where the employee alleged that the employer did not reasonably accommodate her alleged disability: narcolepsy. In Regan v. Faurecia Auto. Seating, Inc., 2012 FED App. 0130P (6th Cir.), Faurecia, an automobile seat manufacturer and the employer, determined that the then-existing morning shift hours in Regan’s department of 6:00 a.m. to 3:00 p.m. were not efficient because the materials needed to complete the tasks of Regan’s department were only delivered after 6:00 a.m. from engineering departments within the company as those departments worked on a later schedule. Therefore, Faurecia modified the morning shift for Regan’s department to 7:00 a.m. to 4:00 p.m. effective a few weeks later. . . .”
For the complete newsletter, follow the link http://www.wwmgs.com/index.php?id=121.
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.
Basic Rules for Responding to a Human Rights Claim
What should you do when you receive a claim from the Human Rights Commission or Equal Employment Opportunity Commission? How you respond sets a tone for the charge, and also for defense of possible claims arising after the response. Here are five suggestions that should guide your response:
- Contact your EPLI carrier if you have insurance, and coordinate with counsel. Prompt reporting of a claim is a requirement of all insurance. An agency charge may be the first step to litigation, and input from counsel to investigate, review, and coordinate defense is important.
- Be accurate and inclusive. Conduct a sufficient investigation to verify the information. Also, preserve all pertinent information and documents, and avoid future spoliation issues by suspending document destruction practices.
- Explain how your business works. Details about your organization may help provide context for your actions.
- Recount all that happened completely. Even if the charge includes only an imprecise allegation, a comprehensive response with justification for all decisions is preferable. This includes making all necessary witnesses available, and you must ensure confidentiality and no retaliation during the interview process.
- Provide context for the charge. Outlining your consistent past actions displays that your organization is responsible and treated the current employee the same as others.
Protected employment discrimination for BFOQ
I have written recent posts on religious discrimination. Employment decisions can be based on religion in some circumstances.
First, the restrictions under federal law only apply to employers with fifteen or more employees (state law may have similar protections but require fewer employees).
Second, there may be a BFOQ, a bona fide occupational qualification. For instance, a Catholic church is not required to consider the application of a Baptist minister to be a priest. Certain religious belief may also be a qualification when the job involves teaching or presenting doctrine. For example, a private, religious school may lawfully require that its teachers be members of a particular denomination, and may bar anyone who is not a member from employment. BFOQs apply when the qualification is reasonably necessary to perform job duties for a position or when necessary to the normal operations of the employer. A Christian college may lawfully require positions such as president, chaplain, and faculty to be Christians or to make a profession of faith.
This exception also applies to the other protected classes under Title VII, as well as to the protections under the ADEA. For example, a transportation company may legitimately place an age restriction on a pilot or driver for public safety purposes. And a “gentlemen’s club” need only hire women for some of its positions because being female is essential to “the job.”
Religious discrimination under Title VII, Part 2
“There are three things I have learned never to discuss with people… Religion, Politics, and The Great Pumpkin. ” ― Charles M. Schulz
Employers are not required to know all tenets of different belief systems, thus employees must put them on notice to request accommodation. But a “religious belief” does not require a recognized church or denomination. An employee need only give adequate information to an employer to invoke protection. Religious observance is not limited to prayer or worship; it can include dietary choices or declining to work on particular days or in certain ways. If requests are made for secular reasons, though, an employer can refuse the request. But employers must be careful about questioning beliefs. The law requires that the belief must be sincerely held. EEOC guidance provides that when the employee acts inconsistently with the belief, when the request appears made for secular reasons, when the timing of a request is suspicious, or when a religious request follows the denial of a secular request, then the sincerity of a belief may be questioned.Creating a policy setting out how to make a request for accommodation is a must. Also, many employers have a sexual harassment policy. However, a better practice is to create a more general anti-harassment policy that covers all protected categories, including religion. Religion can be a unifying force, but it can also cause a great deal of strife. Protecting against strife and discrimination based on religious belief in the workplace is essential.
What Works at Work 