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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 "Title VII".
Supreme Court Extends Anti-Discrimination Protections to Gay and Transgender Employees

In a landmark decision, the United States Supreme Court ruled today in Bostock v. Clayton County, Georgia that gay and transgender employees are protected by federal anti-discrimination laws.  

Thus, as of June 15, 2020, public and private employers are prohibited from discriminating against lesbian, gay, bisexual, transgender, and queer (LGBTQ) employees on the basis of their sexual orientation or identity.

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. 

Background Check Photo (00297714).jpg

On January 29, the Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) issued Directive 306, which encourages federal contractors and subcontractors not to ask about criminal convictions on job applications. According to OFCCP, such questions can result in individuals being treated differently because of their race, national origin, sex, or other protected characteristics.

OFCCP issued the directive to address its concern that hiring policies and practices that exclude employees and potential employees with criminal records violate Title VII of the Civil Rights Act of 1964 (“Title VII”). In support of its statement, OFCCP cites a study which found that one in three adults has a criminal history record. Of those adults, a high percentage were Hispanic and African-American. Based on the study, OFCCP reasons that employers who have a blanket policy of not hiring individuals with criminal convictions will exclude a greater number of Hispanic and African-American individuals resulting in “disparate impact” on these individuals, which would likely be in violation of Title VII. Thus, because of the impact, OFCCP recommends that employers “refrain from asking about convictions on job applications."

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. 

Harassment Photo

Title VII of the Civil Rights Act of 1964 was designed to protect employees from “severe or pervasive” workplace harassment. The potential for employer liability differs depending on whether the “bad acting” employee is a supervisor or co-worker of the complaining party.

If the “bad acting” employee is a co-worker of the complaining employee, the employer will face liability only if it was negligent in discovering or remedying the harassment. If the “bad acting” employee is a supervisor, liability is more easily found. For wrongs by supervisors, the employer can be held “vicariously liable,” meaning the employer can be held responsible for the supervisor’s actions regardless of knowledge or corrective action.

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. 

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The Pregnancy Discrimination Act requires that employers treat pregnant employees the same as non-pregnant employees who suffer from some injury or sickness that occurred outside of work. 

In our last post, we reviewed the D.C. Fire Department’s change to their pregnancy policy.  In this post we take a look at what the Pregnancy Discrimination Act requires. 

The Pregnancy Discrimination Act:  A Brief History

In 1976, the U.S. Supreme Court found that under Title VII, discrimination based on pregnancy was not sex discrimination.  Unhappy with this interpretation, Congress passed the Pregnancy Discrimination Act (PDA) which became law in 1978.  The PDA amended Title VII and specified that sex discrimination does include discrimination on the basis of pregnancy.

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Earlier this week, D.C. Fire and Emergency Medical Services Department changed its policy regarding pregnant firefighters.  The change limits pregnant firefighters to 30-days of light duty during and after pregnancy.

Tom Sherwood from NBC 4 in Washington, DC reports

In a move to cut overtime and other administrative costs, the department is now limiting pregnant firefighters to 30 days of light duty or desk duty during a pregnancy.  After that, the employee must use accrued sick leave or annual leave to cover the rest of the pregnancy or any post pregnancy time off...

Under the old policy, a pregnant firefighter might work several months on light duty until she was due to give birth.  Under the new policy, the firefighter could face several months of no pay at all.