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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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

May 15, 2013

EEOC’s first GINA suit settled for $50,000

Posted in Americans with Disabilities Act, Disability, Discrimination, Genetic Information, Genetic Information Non-discriminaton Act (GINA), Regarded as Disabled tagged , , , , , , at 10:14 am by Tom Jacobson

I’m a fan of the The Big Bang Theory — the TV show, that is.

Jim Parsons, as Dr. Sheldon Cooper in "The Big Bang Theory"

Jim Parsons, as Dr. Sheldon Cooper in “The Big Bang Theory”

For the uninitiated, it’s a CBS sitcom revolving around the lives of four Caltech scientists, including the narcissistic theoretical physicist, Dr. Sheldon Cooper, who once proclaimed his genetic superiority by divulging that he has, “a sister with the same basic DNA mix who hostesses at Fuddruckers.”

The Big Bang cast can joke all they want about their family history. However, Tulsa, OK-based Fabricut, Inc. has learned that misusing such information at work can be costly, for it has agreed to pay $50,000.00 to settle the EEOC’s first lawsuit under the Genetic Information Nondisclosure Act (GINA).

According to the EEOC’s suit, Fabricut offered Rhonda Jones a job and then sent her to a contract examiner for a pre-employment drug test and physical. As part of the exam, Jones was subjected to medical testing and required to disclose disorders in her family medical history. The examiner concluded that more testing was needed to determine whether she suffered from carpal tunnel syndrome (CTS). Fabricut then asked Jones to be evaluated for CTS by her personal physician. She complied, and her doctor concluded that she did not have CTS. Nevertheless, the company rescinded its job offer because its contract examiner indicated that she did have CTS.

The EEOC alleged this violated GINA. Enacted in 2009, GINA is a federal law that makes it unlawful for covered employers to discriminate against employees on the basis of their genetic information, including family history. It also restricts employers from requesting, requiring or purchasing such information. The EEOC also alleged that Fabricut violated the Americans with Disabilities Act (ADA).

In the consent decree settling the case, Fabricut agreed to pay $50,000.00, plus

  • Post an anti-discrimination notice to employees
  • Disseminate anti-discrimination policies to employees
  • Provide anti-discrimination training to employees with hiring responsibilities.

What you need to know: The EEOC has now identified genetic discrimination as one of it enforcement priorities. According to EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.” Thus, employers and employees need to understand their rights and responsibilities under GINA.

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

January 4, 2013

Swine flu as ADA disability? Maybe when pigs fly …

Posted in Americans with Disabilities Act, Disability, Discrimination, Regarded as Disabled tagged , , , , , , , , at 4:58 pm by Tom Jacobson

Dec. 26, 2012 -- Under the London Bridge, Lake Havasu, AZ

Dec. 26, 2012 — Under the London Bridge, Lake Havasu, AZ

Over Christmas I joined my wife’s family for an escape to Lake Havasu, AZ. We enjoyed the warm sun, visited the re-constructed London Bridge, lounged by the pool, and even though many of the 17 of us shared a cold, we had a fantastic time. And when it was time to get back to the office, no one fired me over a fear that I might infect everyone with some contagious disease I may have picked up while out-of-state.

Francisco Valdez was not so lucky.  According to court documents, Valdez worked for Minnesota Quarries, Inc. d/b/a Mankato Kasota Stone, Inc. In the spring of 2009 Valdez traveled to his native Mexico to visit his gravely ill sister who died while he was en route. At the time, the Centers for Disease control had advised against non-essential travel to Mexico due to a swine flu outbreak there. When Valdez tried to return to work a week later, the company’s HR director told him that he was being terminated because the company feared he might have contracted swine flu and because he had violated the company’s no-call/no-show policy.

Valdez sued Kasota Stone, alleging among other things that being fired because of a fear that he had swine flu violated the Americans with Disabilities Act. Specifically, Valdez claimed that because Kasota Stone was afraid he had swine flu, the company regarded him as disabled. Under the ADA, the term “disability” includes being “regarded as” having an impairment that substantially limits one or more of a person’s major life activities; therefore, the ADA makes it unlawful for an employer to discriminate against employees who it regards as having such impairments.

In a December 10, 2012 decision Judge Patrick J. Schiltz of the United States District Court for the District of Minnesota rejected Valdez’s claims. The court first noted that in “regarded as” cases under the ADA, “An employee is not ‘regarded as’ disabled if the impairment that he is regarded as having is both ‘transitory and minor.'” The court also pointed out that federal regulations exclude “common ailments like the cold or flu” from being considered as disabilities in “regarded as” cases. The court then concluded that despite the subjective fear of swine flu, the objective medical evidence indicates that in reality, swine flu is no more severe than “seasonal flu.” Thus, the court dismissed Valdez’s case after ruling that, “Because swine flu is objectively transitory and minor, it is not a disability under the “regarded as” prong of the ADA…. Valdez therefore cannot be considered disabled within the meaning of the ADA.”

What you need to know: Discriminating against an employee because he or she is “regarded as” having a disability is as unlawful as discriminating against one who actually has a disability. Although the Valdez case emphasizes that not every feared ailment is protected by the ADA, employers must exercise extreme caution if they want to take action against an employee because of his or her actual or perceived state of health.

For more information about this article, please 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 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 14, 2011

Diploma requirement may violate the ADA

Posted in Application Process, Diploma requirements, Disability, Discrimination, Interviewing, Job Descriptions tagged , , , , , at 9:47 am by Tom Jacobson

If you search monster.com or  even the “help wanted” section of any newspaper, the odds are pretty good you’ll stumble upon countless ads where “high school diploma or its equivalent” is listed a job requirement.  That may seem like a pretty innocuous requirement; after all, a diploma certainly indicates the applicant has met someone’s established standards of intelligence and ambition.  However, as the Equal Employment Opportunity Commission (EEOC) has recently stressed, a diploma requirement may violate the Americans with Disabilities Act (ADA).

The EEOC’s comments came in the form of an “informal discussion letter,” which responded to a request for public  comment on the issue.  In that letter, the EEOC noted that there are many individuals who, due to various learning disabilities, may be unable to obtain a high school diploma or its equivalent.  Yet, they may have the skills to perform the essential functions of the job to be filled. “Thus,” the EEOC noted, “if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.”

Although the EEOC’s  informal letter does not constitute the official opinion of the Commission and does not carry the force or effect of a law or regulation, it serves as a reminder to employers that job requirements must be truly job-related and consistent with business necessity.  Artificial requirements which act as barriers that keep otherwise qualified individuals with disabilities out of the workplace will be subject to challenge.

For more information about this article, please 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

December 8, 2011

Botched FMLA leave costs MN employer $12K

Posted in Disability, Family and Medical Leave Act (FMLA), Leaves of Absence tagged , , , , , , , at 10:12 am by Tom Jacobson

When Jim failed to return to work at Happy Trails Home* after his FMLA leave expired, Happy Trails fired him. Although this may seem like the proper course of action, this southern Minnesota health care facility ended up paying Jim $12,000.00 to settle his claims arising from Happy Trails’ botched handling of his leave.

The trouble began when Jim needed time off to recover from surgery. Happy Trails granted his request for FMLA leave, but it used a confusing FMLA designation form. The form said that eligible employees could “take up to 12 or 26 weeks of job-protected leave…”. This led Jim to believe that he had up to 26 weeks of leave. In addition, Happy Trails never clarified for Jim the number of hours, days, or weeks that would be counted against his FMLA leave entitlement.

The problems continued during Jim’s leave. He was ready, willing and able to return to work within about a month after his leave started. His doctor cleared him for light duty work, and he gave those clearances to Happy Trails. Rather than allowing Jim to return to work in a light duty capacity (as it had done for other employees), or working with him to figure out how much longer his FMLA leave would last, Happy Trails simply told him that he could not return to work until the light duty restrictions were lifted. Thus, Jim remained off work until his light duty restrictions were lifted slightly more than 12 weeks after his FMLA leave started.  Even though his restrictions were lifted, Happy Trails refused to bring him back to work.

Jim also claimed that Happy Trails’ failure to allow him to return to work in a light duty capacity violated the Americans with Disabilities Act Amendments Act. Assuming that his shoulder problems were a “disability” under the ADAAA, Jim argued that Happy Trails failed to engaged in an interactive process with him to determine a reasonable accommodation such as job restructuring, a modified work schedule, an ADAAA-based leave of absence, etc.

To make matters worse, Happy Trails changed its story after Jim challenged the company’s decision. First, Happy Trails said they were simply replacing him with someone else who had “seniority.” Then, the company suggested that his termination was related to an old scheduling issue. Eventually, Happy Trails said they let him go because he did not return to work before his leave had expired.

Fortunately for Happy Trails, Jim was able to find a new job within a few months after being discharged; this limited the company’s liability for Jim’s lost wages. Nevertheless, rather than face a lawsuit, Happy Trails agreed to pay Jim $12,000.00 to settle his claims.

Happy Trails learned the hard lesson that managing FMLA leaves is challenging. Federal laws impose a myriad of requirements that apply from start to finish, and failing to dot the “i’s” and cross the “t’s” is costly.  Happy Trails also learned how wavering explanations will damage credibility.

*Names have been changed due to confidentiality.

For more information about this article, please 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 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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