Legal Update: including Physical Abilities Testing and Big Data

Physical Abilities Testing

There were recent developments in two cases related to the use of physical abilities tests as part of the pre-employment process.

United States of America v. Commonwealth of Pennsylvania et al.

In August 2016, the U.S. Department of Justice (DOJ) asked a federal judge in the U.S. District Court for the Middle District of Pennsylvania to grant a partial summary judgment indicating that the physical abilities test battery used by the Pennsylvania State Police (PSP) disproportionately screened out female applicants clearing the way for trail against PSP. The DOJ claims the court should conclude that the state’s use of its physical abilities test for screening entry-level state police trooper positions has a disparate impact on women and should therefore allow the parties to proceed to trial to determine whether the test is job-related and consistent with business necessity or whether there is a less discriminatory alternative employment practice that serves the state’s needs. Continue reading

Legal Update: including Big Data, Transgender Workers, and Intern Pay

“Big Action” on “Big Data” in Employment Contexts

Several recent Federal government activities have shown an increased concern over the use of big data. In May, the White House issued a report Big Data: Seizing Opportunities, Preserving Values which detailed the results of a 90-day study examining how big data will transform the way we live and work, altering the relationships between government, citizens, businesses, and consumers. A significant finding of the report was that big data analytics have the potential to eclipse longstanding civil rights protections pertaining to how personal information is used in housing, credit, employment, health, education, and the marketplace.

In September, The Federal Trade Commission (FTC) hosted a public workshop entitled Big Data: A Tool for Inclusion or Exclusion? While no obvious policy initiatives came out of the conference, it seems clear that regulators such as the FTC and EEOC are paying close attention to big data. During the work shop the EEOC’s Assistant General, Carol Miaskoff, noted that big data is not inherently discriminatory. However, she went on to say that if measures or factors used to analyze that data are not job-related and consistent with business necessity, and they create a disparate impact on protected classes, an employer’s personnel decisions based on big data analytics can violate the law. Ms. Miaskoff also cautioned that employers that look at social media, which could be considered a source of big data, in the screening process might put themselves “in a vulnerable position” because social media offers “a plethora of information about protected statuses.” Continue reading

Legal Update: Background Checks Revisted

Revisiting Background Checks (Again)

Background checks continue to be a source of litigation. In June 2013, we highlighted two lawsuits filed by the EEOC against Dollar General and BMW for allegedly violating Title VII by relying on background checks (EEOC v. BMW Manufacturing Co., Inc.; EEOC v. Dolgencorp LLC d/b/a Dollar General). In both, the EEOC asserted that each company discriminated against African American job applicants through the improper use of criminal background checks as an applicant screening tool which were not job-related and consistent with business necessity and resulted in disparate impact. Since then, there have been additional developments related to background investigations in employment contexts.

In the BMW case, the claimants were employees of a company that provided logistical services to BMW. That company conducted criminal background checks, but they were limited to convictions within the past seven years. The company ended its contract with BMW and the employees had to reapply for jobs at BMW and subsequently had to undergo another criminal background check. During that process, several employees were found to have criminal convictions and were told they were no longer eligible for employment. At issue appears to be the duration of time since the conviction. The EEOC stated “The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.” While the Fair Credit Reporting Act (FCRA) allows for the use of criminal record checks in screening regardless of the time frame, the EEOC has considered limiting this to seven years. The EEOC alleges that BMW’s criminal conviction background check policy disparately impacts African American employees and applicants because BMW does not conduct an individual assessment of the nature or seriousness of the offense, how old the conviction is, or the nature of the claimant’s respective positions. Moreover, EEOC claims the policy is not job-related and consistent with business necessity.

In the latest action in the case (October 2014), the Federal judge in the U.S. District Court in South Carolina denied BMW’s motion to acquire documents from the EEOC related to the EEOC’s own policies and practices on background screening for its own employees. The judge ruled that the EEOC’s practices were not relevant to BMW’s defense.

In October, Dollar General agreed to settle a Fair Credit Reporting Act (FRCA) class action lawsuit for $4 million dollars (Marcum v. Dolgencorp). The suit was initially filed in 2012 by lead plaintiff Jonathan Marcum who alleged that the discount retailer solicited a background report on him without proper notification and that he didn’t get the job as a result of the report. The $4 million dollar settlement fund will be used to satisfy claims by approximately 112,000 class members who allegedly did not receive proper FRCA employee screening disclosures.

Amid all the litigation, in March the EEOC and the Federal Trade Commission (FTC) co-published new guidance that consolidated the two agencies’ rules on background checks. The two technical guidance reports, Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know are available on EEOC’s website. The fact that EEOC and FTC have collaborated to issue a new set of guidelines suggests that both agencies consider this topic to be a priority and could potentially share information and leads when enforcing laws concerning the use of background checks. Employers are well advised to consider the risks that come with the use of background reports when making personnel decisions.

Co-Author: Brian O’Leary U.S. Government Retired, Independent Consultant

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington

Same-Sex Discrimination Suit Settled

EEOC LogoUnder a consent judgment in EEOC v. Boh Brothers Construction Co. LLC, Boh Bros. Construction Co. agreed to pay $125,000 in compensatory damages to a former employee in a same-sex discrimination case brought by EEOC. The original suit was filed in 2009 in the Eastern District of Louisiana. New Orleans-based Boh Bros. is a major construction company that operates in the New Orleans and Gulf South areas. The suit charged that a male company supervisor harassed a male ironworker with verbal abuse and taunting gestures of a sexual nature. The supervisor admitted that he harassed the ironworker because he thought the employee was feminine and did not conform to the supervisor’s gender stereotype of “rough ironworkers”. A jury in district court found that Boh Bros. violated Title VII by permitting hostile work environment sexual harassment. Boh Bros. appealed the district court’s ruling. A three judge panel of the Fifth Circuit Court of Appeals reversed the jury verdict. Noting that there was no evidence that the ironworker was homosexual or effeminate, the panel found that the evidence did not establish that Boh Bros. had harassed the ironworker “because of sex”, which is the standard under Title VII of the Civil Rights Act.

The EEOC, noting that this interpretation of Title VII conflicts with Supreme Court law asked the full en banc Fifth Circuit Court to rehear the case. (The Supreme Court recognized that the stereotyping of gender norms in the workplace could constitute actionable Title VII discrimination in Price Waterhouse v. Hopkins, 1989.) The en banc Fifth Circuit agreed to rehear the case and heard arguments on rehearing in May 2013. A 10- judge majority of the deeply divided 16 judge court concluded that EEOC could use evidence that Boh Bros. supervisor viewed the ironworker and alleged harassment victim as “insufficiently masculine” to make its Title VII claim. The majority held that harassment “because of sex” is based on lack of conformity with gender stereotypes. The issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes. What mattered was that the supervisor saw the ironworker as “unmanly” – not whether the ironwork was actually “feminine” in some objective sense. The case was remanded to the District Court for further proceedings, including setting the proper amount of emotional damages in light of the appellate decision. The parties thereafter reached an agreement for consent judgment.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington

Social Media in the Workplace

Social MediaOn March 12, 2014 a panel of attorneys testified at an open meeting of the EEOC on the topic of social media in the workplace. Testifying were Jonathan Segal of Duane Morris, LLP representing the Society for Human Resource Management (SHRM), Renee Jackson of Nixon Peabody, LLP who counsels employers, Lynne Bernabei of Bernabei and Wachtel, PLLC who litigates for plaintiffs, Carol R. Miaskoff the Acting Associate Legal Counsel at the EEOC, and Rita Kittle, senior trial attorney at the EEOC. The purpose of the meeting was to inform the EEOC about the growing use of social media and how it impacts laws that the EEOC enforces. Testimony focused on social media in hiring, social media in the workplace, and social media as a source of discovery in employment discrimination cases.

Defining Social Media

All presenters agreed there is no standard definition of social media and that what constitutes social media is constantly changing and expanding. For the purpose of the meeting, Jackson stated that “social media” will refer to any websites or mobile device applications (“apps”) that allow users to create, post, upload, comment on, interact with, or share content with other users (including the user’s own network, networks of others, or members of the public). Jackson went on to indicate that social media includes things such as:

  • Social or professional networking platforms such as Facebook and LinkedIn, which allow users to connect with family and friends and build professional networks;
  • Blogs such as HuffingtonPOST, TMZ, and Gawker, and micro-blogs such as Twitter, which operate as online journals, news aggregators, and places for public commentary; and
  • Video, image, and text sharing platforms such as YouTube, Instagram, Snapchat, Pinterest, and Confide, where users upload, view, exchange, and comment on videos, images, and text.

Segal indicated that employers use social media for several different purposes: employee engagement and knowledge sharing, such as having a corporate Facebook page or blog to keep employees in remote offices aware of new programs or policies, marketing to clients, potential customers and crisis management, as well as for recruiting and hiring of new employees.

Social Media and Hiring

It is increasingly common for employers to use social media to recruit and obtain information about prospective employees and for applicants to use social media to find and apply for jobs. Segal shared a survey done by SHRM showing that 77% of companies reported they used social networking sites to recruit candidates, up from 34% in 2008. Jackson indicated that some of the activities employers use social media for include:

  • Identifying and sourcing potential candidates;
  • Improving the candidate experience by allowing applicants to apply directly through social media;
  • Learning more about the candidates who have applied to or who are interviewing with the company;
  • Validating an applicant’s candidacy against job criteria;
  • Validating an applicant’s resume against their professional network profile;
  • Evaluating an applicant’s potential organizational “fit”;
  • Identifying an applicant’s professional qualifications, communication skills, and well-roundedness; and
  • Disqualifying applicants based on negative information found.

Reese v. Department of Interior (National Park Service) is an example at the federal level of a complaint related to identifying and sourcing candidates via social media presented by Miaskoff. In this case, the complaint alleged that she was not selected for a Park Ranger position due to her age (61) and sex (female). She asserted that the agency’s recruitment of younger people for this position through Facebook and other social media put older workers at a disadvantage, because they use computers less often than younger people, and therefore using social media had a disparate impact on workers protected by the Age Discrimination in Employment Act. On appeal, the EEOC affirmed that the complainant had not put forth evidence of disparate impact or preference for younger applicants linked to the agency using social media for recruitment.

Miaskoff noted that recruitment, selection, and employment activities are subject to EEO laws, regardless of the media the employer uses. She indicted that “the EEOC laws do not expressly permit or prohibit the use of specific technologies…. the key question….is how the selection tool are used.” As Bernabei indicates, surveys of hiring managers show that they are increasingly using social media to screen applicants and that employers make determinations on applicants’ suitability. Of course social media websites also display “non-job relevant information that could be used inappropriately for evaluating applicants, resulting in biased hiring decisions.” A person’s profile on many sites include gender, age, sexual orientation, and political philosophy, all of which are protected characteristics under various state or federal laws. Moreover, there is very little data to indicate whether social network derived data accurately predicts job performance.

Several presenters recommended that employers use a third-party consumer reporting agency or a designated individual within the organization (who does not make hiring decisions) to conduct the social media search and filter out any protected class information. As we have previously reported, a number of states have passed legislation (and many states have such laws pending) to prevent employers from requiring access to personal accounts on social media. Maryland was the first state to pass such a law. The law prohibits an employer from requesting or requiring an employee or applicant to disclose a user name or password and permit access to personal social media accounts. Moreover, it prohibits an employer from discharging, disciplining, or otherwise penalizing an employee or applicant for failing to comply with the employer’s request. There are several proposals before Congress to do the same thing at the federal level.

Use of Social Media in the Workplace

Use of social media in the workplace is pervasive. Employees use social media throughout the workday on both computers and mobile devices. The use of personal social media accounts may impact workplace harassment cases. As Bernabei indicates, even if employees post harassing or derogatory information about coworkers away from the workplace, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As an example, in Guardian Civic League v. Philadelphia Police Department, plaintiffs alleged that the police department created a hostile work environment by allowing white police officers to operate a racist website and to post racially offensive comments while on and off duty. The case against the police department settled for $152,000 plus injunctive relief. In another example, at the federal level, an air traffic controller asserted that he was subject to a hostile work environment based on race and sex, after he found that a co-worker made disparaging remarks about him on Facebook, after he made an office “food run” to Chick-fil-A (Knowlton v. Department of Transportation, Federal Aviation Administration). The employee, who didn’t have a Facebook account learned about it from other co-workers who inferred the alleged harasser was upset that food was ordered from Chick-fil-A because of its purported anti-gay reputation. Later the employee alleged that his regular trainer, who was friends with the alleged harasser, reassigned him to another trainer who began harassing him. The agency dismissed the case, stating that the initial Facebook post was insufficient evidence of a hostile work environment. On appeal, the EEOC reversed the agency’s decision, stating that the negative work atmosphere the employee alleged – including the harassment during training was part of a series of incidents dating to the initial Facebook post.

Social Media in the Discovery Process

There are times when an employee or former employee brings suit against an employer and the employer seeks to gain access to the employee’s social media. Although many of the postings may not be relevant to the litigation some may be relevant such as information that may be embarrassing to the employee or postings that may contradict facts the employee is using to support his claims. Bernabei indicated that if an employee’s “public” postings raise suspicions or red flags sufficient to demonstrate that the employee’s private posts may lead to discovery of admissible evidence, that will often be enough to tip the balance in favor of the rest of the employee’s social media account to be discoverable. Kittle noted that increased efforts to access private social media accounts may deter people from pursuing a charge or lawsuit in the future.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington

New York City Fire Department Lawsuit Settled

We have reported on US and Vulcan Society, Inc. v. City of New York in previous articles.

New York City Fire Department LogoOn March 18, 2014 New York City settled this long-running lawsuit in which the Vulcan Society claimed that the city fire department intentionally discriminated against minority applicants. The case was scheduled to go to trial March 31, 2014. The original lawsuit was filed in 2007 by the US Department of Justice and the Vulcan Society, a fraternal organization of black firefighters. The suit claimed that the fire department’s hiring exams and practices excluded minorities from firefighter jobs. In 2011, a federal judge agreed and ordered the creation of a new exam and reforms in hiring practices, including the recruitment of some applicants who failed exams given in 1999 or 2002. However a federal appeals judge ruled in May that the district court went too far in forcing the department to revamp its hiring process. It did leave in place many of the remedies ordered by the lower court, including the appointment of a court monitor. While the city did not dispute the lower court ruling that the exam was discriminatory, it challenged the notion that the discrimination was intentional.

Under the agreement, which must be approved by a federal judge, the city will pay $98 million in back pay, including $6 million in medical benefits, to African American and Hispanic applicants who took the exam to become firefighters in 1999 and 2002. The fire department will create a Chief of Diversity and Inclusion who will report to the Fire Commissioner as well as a Diversity Advocate who will monitor hiring practices and cadet training for discrimination. The fire department will also work with the city’s Department of Education and local colleges to recruit minority applicants.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington

Case of FLSA and definition of clothing

Steelworker

On November 4, 2013, the Supreme Court heard oral arguments on a Fair Labor Standards Act (FLSA) case addressing the issue of whether or not steelworkers should be paid for time spent changing into their protective clothing. Section 203 (o) of the FSLA excludes from the definition of hours worked the time spent “changing clothes or washing at the beginning or end of each workday” if it has been excluded “by the express terms of or by custom or practice under a bona fide collective bargaining agreement.” However the term “clothes” is not defined in the FSLA.

Clifton Sandifer and a group of current and former steelworkers at the U.S. Steel Corporation’s Gary, Indiana plant sued their employer for violating the FLSA because they failed to compensate them for time spent putting on and taking off their work clothes in the plant’s locker room. The steelworkers union had a collective bargaining agreement in place with the U.S. Steel Corporation since 1947. According to the bargaining agreement, workers are not paid for the time it takes to put on (donning) their safety gear before they start work or the time it takes to take off (doffing) their safety gear at the end of their shift.
Steelworkers must arrive early for each shift to put on their protective gear and travel to their work site in time for their shift to begin. Protective gear includes items such as flame-retardant suits, steel-toed shoes, hard hats, safety glasses, and hoods. Time spent putting on protective gear and traveling to their work site can be substantial for some workers due to the amount of safety gear required and the large size of the plants. In fact, some workers travel by bus from the locker room to the work site due to the size of the plant.

The steelworkers argue that Section 203 (o) is inapplicable because putting on safety gear does not fall within the meaning of the phrase “changing clothes”. They believe “changing clothes” refers only to changing from street clothes to work clothes. The U.S. Steel Corporation argues that safety gear is included within the language “changing clothes” and has been bargained with the union. The Supreme Court has not ruled on this case yet.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

Individuals with disabilities changes for Federal Contractors/Subcontractors

VeteranArguably, one of the most important Federal regulatory changes in 2013 was the OFCCP’s final release of regulations updating Section 421 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1973 (VEVRAA) and Section 503 of the Rehabilitation Act of 1974 in the Federal Register. These regulations prohibit federal contractors and subcontractors from discriminating against protected veterans/individuals with disabilities (IWDs) in employment contexts and require employers to take affirmative action to recruit, hire, promote, and retain veterans/IWDs. The final rules were designed to strengthen the affirmative action provisions of the regulations and to aid contractors in their efforts to recruit and hire protected veterans/IWDs and to improve job opportunities for these individuals.

Each of the final rules imposes new obligations on federal contractors regarding veterans and individuals with disabilities (IWDs). The updated regulations expand contractors’ affirmative action and non-discriminatory obligations and impose new record keeping, posting, and notice requirements designed to allow the OFCCP to evaluate compliance. Highlights of the final rules include: Continue reading

Legal Issue: Pattern or Practice and the Vulcan Society

In May 2013, the Second Circuit issued a ruling in United States and The Vulcan Society, Inc., et al v. City of New York, et al. This is a long running case which started as a disparate impact claim and became a pattern or practice case centered on the city’s entry-level firefighter exam. Continue reading

EEOC and the ADA Amendments Act (ADAAA)

In May 2013, the EEOC updated guidance documents related to protections against disability discriminations and reflect changes made to the ADA Amendments Act (ADAAA) relevant to four conditions: cancer, diabetes, epilepsy, and intellectual disability. ADAAA significantly broadens the definition of disability under the ADA. For each of these conditions, individuals should be found to have a disability as each substantially limits major life activities. Additionally, individuals with a history of these conditions are regarded as having a disability under ADA. The updated documents address: (1) when an employer may obtain information from employees and applicants, (2) how to treat voluntary disclosure of a disability, (3) what types of reasonable accommodations an employer can provide, (4) how employers should handle safety concerns about employees and applicants that may related to these disabilities, and (5) what preventative measures an employer may take to prevent disability-based harassment claims.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.