August 26, 2015

Target Settlement Sheds Light on Disparate Impact Discrimination

Posted in Application Process, Background Checking, Disability, Discrimination, Disparate Impact, Disparate Treatment, Gender / Sex, Race, Uncategorized tagged , , , , , , , at 9:15 am by Tom Jacobson

By now, you’ve probably read or heard about Target Corporation’s agreement to pay $2.8 million to settle an EEOC discrimination charge. Unlike a “disparate treatment” case where the plaintiffs claim that an employer’s actions were motivated by discriminatory intent, this was a “disparate impact” case where the EEOC alleged that screening tests used by Target disproportionately excluded applicants on the basis of race and gender and violated the Americans with Disabilities Act. So, what’s the difference between “disparate impact” and “disparate treatment” discrimination?

Disparate impact discrimination cases typically arise out of pre-employment tests, medical exams, background check policies and similar assessments that are used to screen candidates for a job or advancement within a company. The theory was first recognized by the United States Supreme Court in 1971 in the case of Griggs v. Duke Power Co. In that case, the Court noted that:

[Title VII of the Civil Rights Act of 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [a protected class] cannot be shown to be related to job performance, the practice is prohibited.

The Griggs Court also stressed that good intentions do not matter, for “[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

Thus, in a disparate impact case, the focus is not on evidence that the employer intended to discriminate.  Rather, the focus is on statistics. If the statistics show that the employer’s screening practice — no matter how innocuous on its face — has a substantial adverse impact on a protected group, the employer must show that the practice is job-related for the position in question and consistent with business necessity. The employer might still lose the case if there is evidence that the company refused to adopt an alternative employment practice that would have served the employer’s legitimate interests without creating a disparate impact on a protected class.

In contrast, in a disparate treatment case, the focus is on evidence of the employer’s intent. If the evidence shows that the employer intentionally discriminated against an employee or applicant on the basis of a protected classification, the employer will be held liable for unlawful employment discrimination based on the disparate treatment theory.

In addition to paying nearly $3 million to settle the EEOC case, Target also agreed to several non-monetary terms, such as:

  • Not using the assessments again as part of its exempt-level employment selection procedures;
  • Changing its applicant tracking systems to ensure that the collection of data is sufficient to assess adverse impact;
  • Performing a predictive validity study for all exempt assessments currently in use and any new assessments the company expects to use;
  • Monitoring its assessments for exempt-level professional positions for adverse impact based on race, ethnicity and gender; and
  • Annually providing the EEOC with a detailed summary of the studies and the adverse impact analysis conducted.

As the Target case shows, even seemingly innocent employment screening practices can violate Title VII and other anti-discrimination laws. Therefore, employers who use such devices should carefully evaluate their potential adverse impacts before using or continuing them.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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May 26, 2015

Registration Deadline is June 1 for Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 4:20 pm by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

The registration deadline for the Twelfth Annual West Central Minnesota Employment Law Update is June 1. Seating for the June 11, 2015 event is limited, so please register soon if you plan to attend.

For more details and registration forms, please see Registration Open for Twelfth Annual West Central MN Employment Law Update, or contact me at taj@alexandriamnlaw.com or 320-763-3141.

I hope to see you on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 17, 2015

Registration Open for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , , at 9:19 am by Tom Jacobson

attorney Tom Jacobson alexandria mn

Tom Jacobson

Registration is now open for the Twelfth Annual West Central Minnesota Employment Law Update to be held Thursday, June 11, 2015. The event is sponsored by West Central Minnesota SHRM, and it will be held at Alexandria Technical and Community College.

The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters. Masters is an award-winning author and international speaker who provides attendees with not only a memorable multi-media experience, but also immediate “take-home” value for all levels of HR leadership to help them develop and empower a workforce of future leaders.

Click on the following links for more information and the registration form:

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

Contact me at taj@alexandriamnlaw.com or 320-763-3141 if you need more information. We hope you can join us on June 11!

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 20, 2015

Save the Date for Twelfth Annual West Central MN Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Ban the Box, Conviction Records, Credit Checks, Criminal History, Disability, Discrimination, Fair Credit Reporting Act, Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Form I-9, Interactive Process, Leaves of Absence, Minnesota Human Rights Act, Minnesota Parenting Leave Act, Parenting Leave, Pregnancy Leave, Reasonable Accommodation, Recruiting, Safety Leave, Sick Leave, Sick or Injured Child Care Leave, Title VII of the Civil Rights Act of 1964, Training, Unexcused Absence, Voting Rights, Women's Economic Security Act tagged , , , , at 9:04 am by Tom Jacobson

The twelfth annual West Central Minnesota Employment Law Update will be held Thursday, June 11, 2015 at Alexandria Technical and Community College. The morning session is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg, Sara McGrane and Penelope Phillips. Topics for this year’s event will include:

  • An update on significant employment law developments since last year’s event
  • How to apply the myriad of leave / time off entitlements required by Minnesota law
  • What to do when the ADA, FMLA and worker’s compensation collide due to an employee’s medical condition
  • Legal traps in recruiting

The afternoon session will feature award-winning speaker Andy Masters.

Comments from prior years:

  • “Great event!”
  • “Excellent – would highly recommend!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 11! Stay tuned for registration, agenda and other details.

Save the Date

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 1, 2014

Another day, another Executive Order impacting federal contractors

Posted in Age, Alternative Dispute Resolution, Americans with Disabilities Act, Arbitration, Arbitration, Color, Creed, Disability, Discrimination, Fair Labor Standards Act, Family and Medical Leave Act (FMLA), Gender / Sex, Harassment, LGBT, Minnesota Human Rights Act, National Labor Relations Act, National Origin, Pregnancy, Race, Religion, Sexual Harassment tagged , , , at 11:23 am by Tom Jacobson

White HouseIn another attempt to flex his regulatory muscle, President Barack Obama on July 31, 2014 issued yet another Executive Order aimed at federal contractors. This one, the Fair Pay and Safe Workplaces Executive Order, requires potential federal contractors to disclose past employment and labor law violations before they can secure federal contracts.

Earlier this month, President Obama issued an Executive Order to protect the rights of LGBT employees of federal contractors (see President Issues Order to Protect LGBT Workers).

Yesterday’s Order requires most potential federal contractors to disclose violations in the past three years of thirteen specified federal labor and employment laws. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Occupational Safety and Health Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, and any state counterparts of these statutes.

The Order also directs employers with contracts of $1 million or more to “agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.” In other words, the Order will severely limit these federal contractors’ rights to enter into pre-dispute arbitration agreements.

The Order appears to be directed at preventing repeat offenders, but it will have a major impact on employers who will need to overcome this new regulatory hurdle before securing federal contracts.

For more information about the President’s Order, see Obama Signs Executive Order Protecting Federal Contractors’ Employees (CBS News, 7/31/14), President Issues Order Requiring Contractors to Disclose Labor Law Violations When Competing for Federal Contracts (SHRM, 7/31/14), the President’s FACT SHEET: Fair Pay and Safe Workplaces Executive Order, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 30, 2014

Registration Open for 11th Annual Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interactive Process, Minnesota Human Rights Act, Reasonable Accommodation, Religion, Sexual Orientation, Stereotyping, Training tagged , , , , , , , at 11:38 am by Tom Jacobson

Registration is now open for the Eleventh Annual West Central Minnesota Employment Law Update to be held on Thursday, June 12, 2014 at Alexandria Technical and Community College. This year’s event will cover:

  • Hot off the Press — Employment Law News You Can Use: presented by yours truly
  • Reasonable Accommodation and Fitness for Duty: A Practical Guidance on Real Work Problems: presented by attorney Penelope J. Phillips
  • Emerging Discrimination Issues in Employment Law: presented by attorney Mike Moberg
  • Ban the Box and Criminal Background Checks: Putting it All Together So That You Get it Right: presented by attorney Penelope J. Phillips
  • Bonus HR Session: Recruit, Motivate and Retain Your Workforce: presented by humorist and corporate trainer, Ted Schick

The event has been approved for 6.0 HRCI credits. Go to 2014 Employment Law Update Agenda for complete details and to 2014 Employment Law Update Registration to register. I look forward to seeing you on June 12!

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 26, 2014

Save the date!

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Criminal History, Disability, Discrimination, Family and Medical Leave Act, Interactive Process, Leaves of Absence, Reasonable Accommodation, Sexual Orientation, Sick Leave, Sick or Injured Child Care Leave, Training, Unexcused Absence tagged , , , at 5:18 pm by Tom Jacobson

The eleventh annual West Central Minnesota Employment Law Update will be held Thursday, June 12, 2014 at Alexandria Technical and Community College. The morning session of the event is designed to inform employers about developing areas of employment law, and it will be presented by four attorneys who practice extensively in that area of the law: Tom Jacobson, Mike Moberg and Penelope Phillips.

The afternoon session will feature Ted Schick, who will educate and entertain with his presentation, “Recruit, Motivate and Retain Your Workforce.”

Comments from last year’s event:

  • “I attend yearly and look forward to it! Thanks!”
  • “I go to several conferences/seminars every year & this is the most informative of all.  Plus, the group is open & friendly — very nice! Thank you!”
  • “Overall — great day & worth the time!”
  • “Excellent program for the price.”

We hope you can join us on June 12! Stay tuned for registration, agenda and other details.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 27, 2014

Getting the Story Straight

Posted in Disability, Discipline, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Pretext, Retaliation, Uncategorized tagged , , , , at 3:49 pm by Tom Jacobson

crossed fingersAs much as everyone hopes that an employee will always be the right fit for a job, sometimes employers need to discharge a worker. And unless doing so breaks a contract or is based on some unlawful reason (such as illegal discrimination), the dismissal will usually withstand any legal challenge.

One of biggest mistakes an employer can make, though, is giving inconsistent reasons for dismissing the employee. This is because inconsistent reasoning hurts the employer’s credibility and can lead a court to find that the stated reason was really a pretext to cover up unlawful discrimination.

For example, in one recent case (Barnhart v. Regions Hospital) where a former employee claimed her firing resulted from unlawful discrimination, the employer claimed the real reason was her poor attendance and her failure to call in when she was going to be late or absent. However, other evidence suggested that the employer terminated her because of company restructuring. The judge ruled that this inconsistency called into question the true reason for the employee’ termination, and he ordered that the case would need to go trial where the true reason for the dismissal would have to be decided by a court. Had the employer given a consistent explanation, the case likely would have been dismissed.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

July 31, 2013

Things are not always as they seem

Posted in Americans with Disabilities Act, Disability, Discrimination, Fair Labor Standards Act, Minimum Wage, Overtime, Reasonable Accommodation tagged , , , , , , , , , , , , , at 4:50 pm by Tom Jacobson

IMG_5116 Edited“Why is Sam sticking his fingers in Spencer’s mouth?” That’s what ran through my head a couple of years ago when I snapped this picture of one of my sons and a teammate working at a swim meet. When you look closely, you’ll see that things are not always as they seem.

Things are not always as they may seem in the legal world, either. A while back I wrote about an employee who was found eligible for unemployment benefits despite her failure to report to work for two months. For more on that story, click here.

There’s also the more recent case of Lucas v. Jerusalem Cafe, LLC. where a number of workers who were unauthorized aliens sued their employer for overtime and minimum wage violations under the Fair Labor Standards Act. Because they were unauthorized aliens, our first reaction might be to question why they would have a right to sue for a FLSA violation or even collect wages in the first place. That’s what the employer argued, but the court disagreed, noting that “The FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.” Interestingly, the court also noted how the employer’s argument rested “on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income.”

But what if an employee sleeps on the job?  Shouldn’t he be fired? Not if waking him would be a reasonable accommodation for a disability under the Americans with Disabilities Act, according to the federal judge in Virginia who is presiding over the case of Riddle v. Hubbell Lighting, Inc.

Unemployment statutes, the ADA and the FLSA are just a few of the many employment laws where outcomes are not always what you might expect them to be. For a better idea of what those outcomes might be, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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