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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April 29, 2015

Supreme Court Slams Brakes on EEOC Lawsuits

Posted in Alternative Dispute Resolution, Conciliation, Discrimination, EEOC Conciliation, Title VII of the Civil Rights Act of 1964 tagged , , , , at 3:57 pm by Tom Jacobson

IMG_5578The United States Supreme Court today slammed the brakes on lawsuits started by the Equal Employment Opportunity Commission. Specifically, the Court ruled that because the EEOC has a statutory duty to attempt conciliation before suing, the courts have authority to review whether the EEOC has fulfilled that duty. Giving courts the authority to review EEOC conciliation should stifle what some believed was the EEOC’s overly zealous litigation strategy.

The case is Mach Mining, LLC v EEOC, which started as a Title VII sex discrimination charge against the company. During its investigation, the EEOC found probable cause to believe that discrimination had occurred. The agency then invited the company to participate in conciliation to resolve the dispute. The agency also said that a representative would contact them to start the process. A year later the EEOC sent another letter saying that conciliation had been unsuccessful. The EEOC then sued the company.

In response to the lawsuit, Mach Mining argued that the EEOC had not attempted to conciliate in good faith before suing them. This argument was based on Title VII’s requirement that before suing, the EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

The EEOC countered by arguing that the courts do not have the power to decide whether or not the agency makes such an effort. The agency also argued that even if the courts have that power, its two letters to Mach Mining met that standard.

The Court agreed with Mach Mining and held that the courts have the authority to review whether or not pre-suit conciliation was adequate. Specifically, the Court noted that:

Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims.

The Court then went on to establish a judicial process for making this determination:

  • A sworn affidavit from the EEOC stating that it has performed its conciliation obligations but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.
  • If the employer then provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the fact-finding necessary to decide that limited dispute.
  • Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

By adding this level of judicial oversight to the EEOC charge process, those faced with Title VII discrimination charges should now have greater assurance that the EEOC will work harder to resolve those charges informally before rushing to the courthouse.

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, PA

January 18, 2012

Pepsi popped for $3.1M in background check case

Posted in Application Process, Color, Race tagged , , , , , , at 12:24 pm by Tom Jacobson

Background checks are very important tools during the hiring process, but as Pepsi Beverages (formerly Pepsi Bottling Group) recently learned, asking the wrong questions can be discriminatory — and expensive.  In a January 11, 2012 press release the EEOC reported that Pepsi has agreed to pay $3.13 million to settle a case challenging its former background checking policy.

At issue was Pepsi’s policy which rejected applicants who had been arrested and were pending prosecution.  The policy also denied employment to applicants who had been arrested or convicted of certain minor offenses.  According to the EEOC, this policy disproportionately excluded black applicants from permanent employment and that it therefore violated Title VII of the Civil Rights Act of 1964.

In addition to the monetary settlement, Pepsi also changed is background checking policy, and it agreed to offer employment opportunities to victims of its former policy, supply the EEOC with regular reports on its hiring practices, and conduct Title VII training for its hiring personnel and managers.

Although using arrest and conviction records to screen applicants is not per se illegal under Title VII, it can be when it is not relevant to the job. Therefore, employers are urged to use them cautiously.

According to Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.” Schmid added, “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

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

July 16, 2011

Verizon to pay $20 million to settle EEOC disability lawsuit over attendance policy

Posted in Absenteeism, Attendance, Disability, Discrimination, Interactive Process, Job Abandonment, Leaves of Absence, Leaves of Absence, Reasonable Accommodation, Sick Leave tagged , , at 11:11 pm by Tom Jacobson

One size does not fit all when it comes to sick leave and attendance policies.  Verizon Communications recently learned that $20 million lesson in a nationwide disability discrimination lawsuit filed by the Equal Employment Opportunity Commission under the Americans with Disabilities Act.

At issue was Verizon’s “no-fault” attendance policy.   Under this policy, Verizon employees who accumulated “chargeable absences,” were placed on a disciplinary step, and that could eventually result in more serious disciplinary action, including discharge.  According to the EEOC, the problem was that when applying this policy, Verizon failed to make exceptions for employees with disabilities, and this lead to a failure to reasonably accommodate them under the ADA.

In the consent decree (which is still pending court approval), Verizon agreed to pay $20 million.  In addition, Verizon agreed to a number of other non-monetary concessions.  For example, Verizon agreed to revise its attendance policies, provide mandatory training on the ADA, post a notice about the settlement, appoint an internal consent decree monitor to ensure its compliance, and report to the EEOC about all employee disability discrimination complaints relating to the attendance policy or Verizon’s compliance with the consent decree.

The case illustrates that employers who are subject to the ADA must not overlook leaves of absence as a reasonable accommodation.  According to Spencer H. Lewis, Jr., Director of the EEOC’s Philadelphia District Office, “This [Verizon] settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”  And, as noted by EEOC General Counsel P. David Lopez, “Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.”

For more information about this article, see Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit, or 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, PA

January 12, 2011

EEOC reports “unprecedented” number of charges in 2010

Posted in Discrimination, Race, Retaliation tagged , , , , at 10:53 am by Tom Jacobson

The Equal Employment Opportunity Commission has released its discrimination charge statistics for fiscal year 2010. Its report shows that private sector job bias claims reached the unprecedented level of 99,992 charges for the year ending September 30, 2010. The EEOC also reports that “Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers — the highest level of monetary relief ever obtained by the Commission through the administrative process — to promote inclusive and discrimination-free workplaces. EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010, http://bit.ly/gpKA4w).

Although the number of charges increased in all categories, FY 2010 was the first year in which retaliation (36,258 claims) surpassed race (35,890 claims) as the most frequently alleged violation. Also according to the EEOC, its mediation program set a record of 9,370 cases resolved through mediation (a ten percent increase).

Some analysts suggest that the surge in job bias claims has been fueled by a bad economy which motivates displaced or disgruntled employees to litigate. Dismal Job Market Fuels Job Bias Claims, http://on.today.com/gIFYoG.  Other contributing factors include the increasingly diverse workforce and the EEOC’s own efforts to spread the word about workplace discrimination. The EEOC reports that in FY 2010 it delivered its public outreach message to 250,000 people.

Regardless of the reasons for the increased number of charges, the EEOC’s statistics stand as a vivid reminder that unlawful discrimination persists in the U.S. workforce. Employers who take a pro-active approach at eliminating job-bias and taking prompt remedial action when issues arise will be in the best position to defend those claims should they arise in their workplace.

The EEOC’s FY 2010 statistics can be found at http://bit.ly/hr87vj.

If you have any questions about this post, 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.

November 30, 2010

Savvy employers get GINA safe harbor under new EEOC regulations

Posted in Genetic Information, Genetic Information Non-Discrimination Act, Genetic Information Non-discriminaton Act (GINA) tagged , , , at 8:44 pm by Tom Jacobson

The federal Genetic Information Non-Discrimination Act of 2008 (GINA) may sound like a law that employers can ignore.  The name alone suggests that it should only apply to employers who are  involved in medical research or who require in-depth pre-employment medical examinations that delve into to the genetic makeup of applicants or employees.  However, GINA applies to practically every employer in the U.S. with fifteen or more employees, and its restrictions are quite broad.

For example, GINA prohibits employers from discriminating against employees or applicants because of genetic information, and it limits the situations under which employers may acquire and retain genetic information.   This may still seem like the law would rarely apply.   Afer all, what employer would ask for information about an applicant’s or employee’s DNA?  However, the definition of “genetic information”  is extremely broad.  It includes not only information about an individual’s genetic tests and the genetic tests of his or her family members, but it also includes “the manifestation of a disease or disorder in family members …”.   Thus, questions about “family history” during work-related medical examinations become problematic.

Although GINA generally prohibits employers from acquiring their employees’ and applicants’ genetic information, there are exceptions, such as when genetic information is acquired inadvertently.  New regulations passed by the Equal Employment Opportunity Commission have now clarified how employers can take advantage of this exception.  The regulations, which went into effect on January 10, 2011 state that “If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.”  The new regulations also provide sample language that an employer can use to provide this notice.  If an employer receives genetic information after giving such notice, the employer will enjoy a “safe harbor” defense because the receipt will be deemed inadvertent.

Thus, employers who seek medical information about applicants and/or employees should provide an appropriate GINA notice to those individuals.  Doing so will help preserve this safe harbor defense for those savvy employers.

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.

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