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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Posts tagged EEOC.
Employer Antibody Testing for COVID-19 Violates the ADA, According to New EEOC Guidance

The Equal Employment Opportunity Commission posted an update on June 17, 2020 to its COVID-19 / ADA technical assistance for employers (A.7.) to address whether the ADA permits employers to require COVID-19 antibody or serologic testing before allowing employees to reenter the workplace. The ADA does not permit serologic testing, according to the EEOC. 

Employer Risks in Using Employment-Related Criminal Background Checks, Part 2

Part 1 of this article can be found here.

The Fair Credit Reporting Act

Having considering the perils summarized above, an employer who still decides to use employee criminal background checks faces additional restrictions under other federal statutory provisions, namely the Fair Credit Reporting Act (“FCRA”). An employer who uses consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, must comply with the FCRA. The Federal Trade Commission (“FTC”) enforces the FCRA.

Employer Risks in Using Employment-Related Criminal Background Checks, Part I

Use of employment-related background checks by employers to discover information about the work history, education, criminal record and financial history of job applicants has become ubiquitous. In one recent survey of employers, 92% of those responding stated that they subjected all or some of their job candidates to criminal background checks. The reasons for increased employer reliance on criminal background checks are straightforward - to control theft and fraud and address heightened concerns about potential liability for workplace violence and negligent hiring. It is not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check. However, anytime an employer uses that information to make an employment decision, irrespective of how the employer has obtained the information, the employer must comply with federal anti-discrimination and credit reporting laws, and state and local restrictions.

June 27, 2013
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Supreme Court Photo (00342664).jpgVance v. Ball State University

You may be aware of the U.S. Supreme Court decision in Vance v. Ball State University, issued on June 24, 2013, which held that an employer is not strictly liable for a supervisor’s harassment unless the supervisor has the authority to take a “tangible employment action” against the employee.  In Vance, the Court affirmed that a tangible employment action is defined “as a signifi­cant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”  According to the Court, only if the “supervisor” is vested with this authority will strict liability attach to an employer for unlawful harassment under Title VII of the Civil Rights Act.

In the majority opinion, the Supreme Court made it clear that the EEOC and lower courts following the EEOC must abandon their broader interpretation of a “supervisor” and instead adhere to the Court’s strict definition as announced in prior cases.  In so doing, the Court eliminates overly burdensome factual inquiries into whether an employee can be classified as a “supervisor” for Title VII liability purposes.  Cases involving supervisory harassment will continue to turn on whether the supervisor was empowered to cause a signifi­cant change in the employment status of the plaintiff, but due to Vance, the inquiry is considerably narrowed in favor of the employer. 

Construction

The United States Court of Appeals for the Fifth Circuit held that it is not “the business of the federal courts generally to clean up the language and conduct of construction sites” and held that an employer who exhibited lewd behavior that was sexual in nature was simply construction site vulgarity and trash talking in “an environment where these characteristics abound.” EEOC v. Boh Bros. Constr. Co., LLC, No. 11-30770 at 1-2 (5th Cir. Jul. 27, 2012) (vacating the judgment in EEOC v. Boh Bros. Constr. Co., LLC, 768 F. Supp. 2d 883 (E.D. La. 2011)).

Kerry Woods, an iron worker, alleged that Charles Wolfe, his former job superintendent, sexually harassed Woods in violation of Title VII under a theory of “gender stereotyping” and that his former employer, Boh Brothers Construction Company, LLC, knew of the harassment, failed to discipline Wolfe and retaliated against Woods for making a complaint.

Credit Report

Employers choosing to utilize the consumer report or “credit report” as a method of evaluating potential employees face a myriad of legal pitfalls.   Both the Fair Credit Reporting Act and Title VII of the Civil Rights Act of 1964 provide guidelines employers should follow to avoid potential legal liability. 

The usage of consumer reports as a pre-employment tool is disfavored.  While the practice itself is legal, the Equal Employment Opportunity Commission (EEOC) is of the opinion that the practice of inquiring into the assets, liabilities or credit rating of a potential employee tends to impact more adversely on minorities and females.  The EEOC’s position is that the usage of consumer reports in the pre-employment context is permissible only if the employer can show that such information is essential to the particular job in question.  In other words, the test must be related to the job the employee will perform and must be consistent with a business necessity. 

GraduateHat

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities.  The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011.  A significant change in the ADAAA was an expanded definition of “disability.”

For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives.  With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability.  To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.

GavelIn our last two posts, we discussed terminating an employee and the importance of documentation. Earlier this week, in an opinion issued by the 4th Circuit Court of Appeals in Richmond, Virginia, Employers were provided with another example of why documentation is so important in the employer/employee relationship.  

The Case

The facts of the case are fairly straightforward: (1) Employee was terminated due to poor performance; (2) At the time she was terminated she was also pregnant; (3) Employee filed a lawsuit claiming pregnancy discrimination under Title VII. 

Fire Engine.jpg

Two former Fairfax County Firefighters recently pursued sexual harassment claims against Fairfax County in Alexandria Federal Court.  In one case decided in late May of this year, former firefighter Mary Getts Bland received a $250,000 jury verdict.  In early June, a second former firefighter, Stacey Bailey had her claim dismissed on summary judgment. 

Peter Vieth of Virginia Lawyer’s Weekly reports

Both cases involved allegations of a male-dominated culture at Fairfax firehouses, where crude jokesare the norm and one particular officer regularly made explicit and demeaning comments to female employees.