Civil Rights Act of 1964, prohibiting discrimination based on race, color, religion, sex, and national origin by federal and state governments as well as some public places

Posts

Q1 2020: UPDATE OF LAWS AFFECTING EMPLOYMENT BACKGROUND SCREENING

As the year and a new decade unfold, we bring you this update on ban-the-box legislation and laws that restrict credit report usage in employment decisions. And no update would be complete without a reminder about a standard-setting federal appellate opinion from 2019 interpreting the Fair Credit Reporting Act (FCRA) disclosure requirement for an employment background check.

Let’s start with a reminder

In January 2019, the Ninth Circuit’s opinion in Gilberg v. California Check Cashing Stores, LLC made clear that any extraneous information in an FCRA disclosure form regarding an employment background check — even if the information is related to state-mandated expansions of consumer rights — violates the FCRA’s requirement that the disclosure must be “in a document that consists solely of the disclosure.”

Even seemingly innocuous content, such as asking for an acknowledgment that the candidate received the FCRA summary of rights or including a statement that hiring decisions are based on legitimate non-discriminatory reasons may run afoul of the FCRA. And any state and local notices regarding the background check must be provided in separate documents, as applicable to each candidate.

Experts believe that the number of class-action lawsuits brought under the FCRA for technical errors will continue to increase. But there is an easy way to comply:

Present the disclosure to the candidate in a separate, standalone, conspicuous document. Make it clear and simple. Keep it short.

Ban-the-box laws continue to proliferate

“Ban-the-box” measures – which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process – continue to proliferate. Currently, 14 states (California; Colorado; Connecticut; Hawaii; Illinois; Maryland (effective February 29, 2020); Massachusetts; Minnesota; New Jersey; New Mexico; Oregon; Rhode Island; Vermont and Washington) and 22 local jurisdictions (Austin, TX ;Baltimore, MD; Buffalo, NY; Chicago, IL; Cook County, IL; Columbia, MO; District of Columbia; Grand Rapids, MI; Kansas City, MO; Los Angeles, CA; Montgomery County, MD; New York City, NY;  Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester, NY; Saint Louis, MO (effective January 1, 2021); San Francisco, CA; Seattle, WA; Spokane, WA; Waterloo, IA (effective July 1, 2020 but lawsuit filed to strike down the ordinance); and Westchester County, NY) have such laws in place for private employers.

Be mindful of credit restrictions

Less popular than state and local legislatures on ban-the-box and prohibitions on salary history inquiries, credit check restrictions remain an important consideration for employers. Ten states California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada,Oregon, Vermont, and Washington – as well as Chicago, District of Columbia, New York City, and Philadelphia all place restrictions on employers’ use of credit reports with exceptions for the use of such checks when required by law or the responsibilities of the position.      

Arguably, the most imposing local credit report law to date continues to be the New York City’s Human Rights amendment that went into effect on May 6,2015, and made requesting and using consumer credit history for hiring and other employment purposes, with certain exceptions, an unlawful discriminatory practice. The law provides that a “consumer credit report” includes “any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.”Many legal experts hold that the broad scope of this definition not only prohibits obtaining a consumer credit report but also searches of liens, judgments, bankruptcies, and financially-related lawsuits if there is no exemption. There is no case law on this matter. 

On the national level the U.S. House of Representatives on January 29, 2020, passed legislation that prohibits employers from using credit reports for employment decisions, except when required by law or for a national security clearance. The bill also prohibits asking questions about applicants’ financial past during job interviews or including questions about credit history on job applications. The U.S. Senate, however, is not expected to introduce the legislation.

Avoiding Holiday Legal Entanglements

It’s the happiest time of year – except for employers facing the potential of a religious discrimination lawsuit from employees due to holiday decorations, gift exchanges, and other festivities.

While it may seem Grinch-like, such lawsuits are not uncommon. Just a few months ago, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Shekinah Baez against her former employer, Pediatrics 2000. According to the New York federal court complaint, Pediatrics 2000 violated Title VII by denying Baez a reasonable accommodation for her religious beliefs and terminating her because of her religion.

A Jehovah’s Witness, Baez was instructed to plan the company’s 2018 holiday party. The EEOC alleged that Baez’s employer knew that her religious beliefs prevented her from attending a party for another religion (such as a Christmas party) or attend a party that involved drinking or dancing.

During the planning of the party, Baez learned that it would have holiday-themed decorations and entertainment that would make it inappropriate for her to attend, the EEOC said, such as dancers wearing sexy outfits and encouraging the employees to dance. Although other employees were excused from attendance for reasons unrelated to religion, the complaint accused Pediatrics 2000 of refusing Baez’s religious-based request to skip the bash and instead fired her.

That case is ongoing, but there are some ways for employers to avoid becoming a defendant in a similar action.

Title VII prohibits employers from discrimination based on religion and requires them to “reasonably accommodate employees’ sincerely held religious practices” unless it will cause the employer an “undue hardship.”

During the holidays, concerns about religious discrimination can arise in a host of situations, including the context of requests for time off. A Muslim employee may ask to have a break scheduled after sunset during Ramadan when fasting ends, or a Christian worker on the night shift may seek a night off for Christmas Eve mass. Applying the mandates of Title VII, that means employers should generally accommodate reasonable requests for religious observance unless it would cause an undue hardship.

To help reduce complications with time off, floating holidays might be a good option for some employers. This type of excused absence provides employees with the option to take time off for religious observances that they believe in without being required to take time for holidays they do not observe.

Office décor can also be an issue. The U.S. Supreme Court has actually spoken on the legality of holiday decorations. In 1989, the justices ruled in County of Allegheny v. ACLU Greater Pittsburgh Chapter that trees and wreaths are secular symbols, while decorations like a menorah or a creche send a religious message. The EEOC has adopted this position in its Compliance Manual.

Although that ruling applied to a public employer, leaving private employers with the leeway to endorse a religion and display religious symbols in their workplaces, employers may prefer to avoid any potential issues with holiday-neutral decorations – think snowflakes or candy canes – instead of setting up nativity scenes in the conference room and break area.

Employees interested in decorating their own space raise similar concerns. Prohibiting employees from displaying religious-themed holiday decorations in their own workspace could form the basis of a religious discrimination claim, but other employees working nearby could also be offended by an overt religious display. Employers should be careful not to suppress religious expression if the employee decorates their own personal workspace that is not visible to the public and doesn’t imply the employer’s endorsement of the religion.  

Many companies have done away with the annual holiday party for a variety of reasons, from cost to inappropriate behavior by employees to concerns over inclusion. But for those that decide to celebrate the end of the year with their workers, proceed with caution.

To avoid problems, make sure that the party is a voluntary event. Jehovah’s Witnesses don’t celebrate holidays, for example, so requiring an appearance could constitute discrimination. Do not tie the party to a specific holiday and don’t schedule the celebration when it might conflict with a religious observance (such as the night Hanukkah begins).

Food can be tricky, so offer a variety of choices that include vegetarian options as well as items that can meet halal and kosher dietary needs. If alcohol is offered, be sure that nonalcoholic beverages are stocked as well. Similarly, any employer-sponsored gift exchanges should be entirely optional and not holiday-specific – avoid the “Secret Santa” moniker.

A case out of Arizona provides a cautionary tale about many of the dangers of the holiday season for employers. Marcy Rich sued her employer for creating a hostile work environment due to religious discrimination.

Rich, who is Jewish, alleged that her supervisor placed crosses on invitations to a mandatory company holiday party and hired carolers who sang songs with Christian lyrics (like “Christ our Lord”). The supervisor – a born-again Christian – told Rich it was inappropriate to decorate her cubicle with cutouts of a dreidel and a menorah and “Happy Hanukkah” cards.

The employer filed a motion to dismiss the suit, arguing that Rich’s claims were related to Christmas activities, not religion. But the court disagreed.

“This argument lacks merit,” the Arizona federal court wrote in Rich v. Arizona Regional Multiple Listing Service, Inc. “Title VII defines the term ‘religion’ to include ‘all aspects of religious observance and practice, as well as belief.’”

Keeping this principle in mind, employers can strive for a happy holiday season.

Harassment vs. workplace bullying

What is the difference between workplace bullying and harassment?

Bullying and harassment often feature similar behaviors, such as offensive remarks or physical aggression. Workplace bullying is generally recognized as repeated, unreasonable and unwelcome behavior directed at a specific employee (or multiple employees) involving a power imbalance that results in psychological or physical harm.

Harassment, on the other hand, triggers legal protections. By definition, harassment involves a protected characteristic – such as gender, race, religion, sex, color, disability, age, genetic information or national origin – and is actionable under either federal law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act, and/or state law, which may include other categories (including sexual orientation and gender identity).

The legal protections under such laws do not cover all potentially harmful behavior. In the 1998 decision of Oncale v. Sundowner, the U.S. Supreme Court noted that Title VII, for example, is not “a general civility code” that prohibits “all verbal or physical harassment in the workplace.” Instead, such statutes are intended to protect the categories of individuals specified in the laws.

One typical illustration of a workplace bully involves the “equal opportunity jerk” who is generally rude and inappropriate to all of his or her subordinates for a variety of reasons that are not based on a protected category. A supervisor who bullies using gender-neutral language or behavior does not violate state or federal law; nor does a manager who singles out a particular employee because of a personality conflict or a disagreement about how the job should be performed.

Harsh criticism, threatening physical gestures and insults based on intelligence (calling employees “stupid” or “incompetent”) are textbook cases of workplace bullying that are not actionable under federal or state law. 

In practical terms, that means that workplace bullying is legal, although efforts have been made to enact anti-bullying laws. The Workplace Bullying Institute drafted model legislation called The Healthy Workplace Bill, and a version of the bill has been introduced in 30 states and two territories. For example, Massachusetts lawmakers recently considered Senate Bill 1072, legislation that would have banned all “abusive conduct” against employees, even if it wasn’t based on a protected characteristic.

To date, no jurisdictions have enacted the measure.

While workplace bullying remains legal, it doesn’t mean that employers should turn a blind eye to such behavior, which has been documented to have a negative impact on the workforce. Employers can provide protections that the law does not, by establishing anti-bullying policies with guidance on how victims of bullying can report incidents and with applicable penalties for employees who violate the policy.

Potential Issues in using Social Media Information in Employment Decisions (Discussion)

Below are some of the common issues and considerations for using social media information in employment decisions.

Illegal discrimination

According to a 2018 national survey conducted on behalf of CareerBuilder by Harris Poll, 70% of employers use social media to screen candidates before hiring. While they may not be searching for negative information, more than half of those surveyed (57%) said they have found something during their screenings that led them to not hire someone. If even a single, disgruntled job applicant sued claiming he/she was not hired because of the illegal consideration of information obtained from a social media site, it could cost the company hundreds of thousands of dollars in legal fees. Convincing a court that the information uncovered from the viewing of social media was not used in the hiring process is often an uphill battle. After all, why was the site accessed if there was no intent to use the information?

Both the federal Civil Rights Act and state statutes prohibit discriminating against an applicant or employee because of a protected characteristic, such as race, religion, ethnic origin, disability and, increasingly, gender identification or sexual preference. For most jobs, this information is intentionally omitted from the employment application process in order to avoid legal problems. But if an employer or its agents want to find out such information, it is often readily available from a candidate’s Facebook page or LinkedIn profile. Of course, users may omit this information from their social media accounts or restrict access, but many do not— especially since they assume it will be accessed only by their friends or close associates.

The case of C. Martin Gaskell v. Univ. of Kentucky (2010 WL 4867630 E.D Ky. 2010) is an example of what can happen when an employer uses information gathered from social media as part of the hiring process. Dr. Gaskell was an astronomer who applied for a job as the director of the observatory at the University of Kentucky. During the job interview, the chairman of the Physics and Astronomy Department stated that he had researched Dr. Gaskell’s religious beliefs (online), and that they might be unacceptable to the dean of the department. The information he obtained showed that Dr. Gaskell was an outspoken critic of evolution and a believer of the intelligent design viewpoint. After someone who believed in evolution was hired for the position, Dr. Gaskell sued the university, claiming that its conduct violated his rights under the Civil Rights Act. Specifically, he alleged that the University discriminated against him based on his religious beliefs. During the discovery process, it was learned that an employee within the department sent an email to the chairman regarding an Internet search

that she conducted on Dr. Gaskell. In the email, she discussed the professor’s anti-evolution religious beliefs and indicated it was not a positive attribute. The court agreed that this information provided Dr. Gaskell with enough evidence to pursue a lawsuit to determine whether his religious beliefs uncovered in the Internet search were, in fact, illegally used to deny him the position sought. The case was ultimately settled for $125,000 before trial.

A discrimination trap that perhaps is frequently overlooked falls under the Americans with Disabilities Act (“ADA”) and may happen when an adverse decision is based on photos  or other postings showing a job candidate drinking or abusing drugs. Surveys show that adverse decisions after viewing such content often involve a reasoning that the individual “used bad judgment” but ADA provisions, as they relate to substance abuse, pose a discrimination risk as “addiction to a drug that has been prescribed, or alcohol abuse problems put the candidate in a protected disability class.”

Another risk exists in the form of disparate impact claims, which can arise if it turns out that an employer has been systematically refusing to hire applicants with a particular protected characteristic. Even if no disparate impact occurred because an employer viewed social networking profiles, disparate impact can result if the company tends to hire people who have social networking profiles rather than those who don’t. It is a generality, but this could occur because younger, more Internet-savvy and more affluent people tend to use social networking more than others.

EEOC consequences

In addition to potential lawsuits from individuals, an area of legal concern is the consequence  of running afoul of the Equal Employment Opportunity Commission (EEOC). The EEOC has become very active in scrutinizing employers’ hiring practices and in filing cases against them when it determines an employer’s hiring practices improperly include the use of social media.

NLRB issues

Whereas the EEOC is tasked with examining companies’ hiring practices, the National Labor Relations Board (NLRB) is the agency that enforces the National Labor Relations Act, which protects union-related activities. Although the NLRB has interpreted the Act as allowing the researching of candidates through social media, it cautions employers that doing so may pose a significant legal risk. It warns that if an unsuccessful job applicant can establish that a prospective employer had knowledge of his/her protected activity through the viewing of social media, the prospective employer may face liability if the applicant alleges he/she was denied employment because of it. An employer may be found legally liable unless it can show that it would not have hired the applicant regardless of its knowledge of the activity. Even if the individual making hiring decisions is not the one who reviewed a candidate’s social media activity, the employer may still be subject to liability since the NLRB has a liberal standard for “imputed knowledge.”

Off-duty conduct statutory restrictions

Several states have enacted legislation to protect employees’ conduct outside of the workplace. Generally, these statutes restrict an employer’s ability to discipline employees for engaging in legal activities while not at work.

In the social media context, in New York for example, the off-duty conduct statute restricts employers’ ability to take adverse action (including hiring, pay, workplace conditions, and termination) against employees engaged in recreational activities. In California, the Dept. of Industrial Relations has interpreted Labor Code § 96(k) which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire, even though the statute does not explicitly refer to hiring.

FCRA requirements

Under the FCRA § 607(b), consumer reporting agencies (CRAs) are required to exercise “reasonable procedures to assure maximum possible accuracy” of the information. Since the information on social media sites is self-reported and can be changed at any time, it is often difficult to ascertain that the information is accurate, authentic and belongs to the subject. Online identity theft is not uncommon, as are postings under another person’s name for purposes such as “cyber–slamming” (which refers to online defamation, slander, bullying, harassment, etc.) There is also evidence that some applicants try to game the hiring process by creating fake profiles of other potential applicants whom they view as competition for jobs.

Terms of use limitations

While certain social media sites have stricter privacy controls than others, many limit the use of their content. The terms of use agreements typically state that the information is for “personal use only” and not for “commercial” purposes. Although the definition of “commercial” in connection with employment purposes is interpretive, many legal experts say that employment screening fits that scope.

Privacy rights

Most states permit common-law claims for invasion of privacy, and some states, such as California, also provide constitutional privacy rights that may apply to private-sector employers.