Disparate Treatment Versus Disparate Impact

One kind of discrimination claim that could arise occurs when members of different groups are treated differently with respect to their criminal backgrounds.  This is called disparate treatment.  For example, if a black applicant and a white applicant both were convicted of auto theft two years before applying to work for your company, it would be disparate treatment discrimination to disqualify the black applicant on this basis, but not the white one.  As with all employment policies, you should ensure that similar employees are treated similarly, without regard to their membership in protected classes.

 The other kind of discrimination claim is disparate impact.  This occurs when a policy that is neutral on its face results in a group of employees being disadvantaged.  In this case, a policy against hiring individuals with criminal records would be neutral on its face, but could give rise to a disparate impact claim based on race or national origin.  A policy that yields a disparate impact, however, can be applied if it is “job related and consistent with business necessity.”  Therefore, you must consider whether your screening criteria meet this standard and whether the same results could be achieved in a different way that does not create a disparate impact.  Policies that automatically disqualify anyone with a criminal record are generally unlawful.

 Further Points to Consider

 To ensure your policy will pass scrutiny, you should consider the nature of the crime, the time elapsed since the crime occurred, and the nature of the job.  For example, a conviction for identity theft is far more relevant when hiring a payroll manager than a truck driver.  But if the identity theft conviction was 20 years ago, it may be too remote for consideration even for the payroll position.  There are no absolute rules to follow; it is all a judgment call.

Although an individualized assessment of your rule to each individual case is not required, the EEOC recommends it as a way of ensuring all relevant information is taken into account and nothing more.  You should consider the facts and circumstances of the offense, the number of offenses, the age of the individual at the time of the offense and now, evidence that the individual has performed similar work without engaging in criminal conduct, rehabilitation, employment history, character references, and other information relevant to determining whether the individual poses a real risk.

A few final points should be considered.  First, the EEOC warns against using arrest records because an arrest does not prove the conduct occurred.  If you have independent knowledge of the conduct and wish to take action based on the underlying conduct, that is not unlawful.  Second, state laws vary regarding how criminal convictions can be used and when background checks can be performed.  Due to state law concerns, asking about convictions on a job application is not advisable.  Finally, you should keep criminal record information confidential.

If you discover an employee or applicant has a criminal conviction and would like to take action based on it, consulting with legal counsel can help you avoid a discrimination claim.  Legal counsel can also review your policies to ensure they comply with state law and the EEOC’s guidance.

 Another Sign of the Obama Strategy

As with many other acts of the Obama Administration, this enforcement guidance expands the scope and enforcement of an existing law, Title VII, without enacting new legislation.  More than ever, employers need to pay attention to the actions of administrative agencies to determine their obligations under the law and whether those obligations have been expanded.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

In 2003, Caucasian firefighters claimed reverse discrimination because the City of New Haven threw out their promotion test results because too few minorities did well.  In 2009 the case eventually made its way to the Supreme Court where the Justices found for the firefighters.  The case went back down to the United States District Court to decide on a damage award. 

The City offered to pay about $2 million total in back pay and monetary damages to the plaintiffs, as well as $3 million in attorney’s fees.  The plaintiffs will also receive additional pension benefits.  After eight years, this case is finally over.  Hopefully, the City can now concentrate on other issues.

When the human resources manager later requested that he meet with her again, he refused and was suspended.  The next day, the human resources manager called him at home and, again, requested a meeting.  When he refused again, she terminated his employment.

In response to his challenge to the employer’s conduct, the Court ruled that there was no evidence of discrimination and that the company appropriately followed its policies on workplace misconduct. Under its policies, willful misconduct, including insubordination, constituted grounds for immediate termination.  Based on his repeated refusal to comply with the human resources manager’s instructions, he was appropriately discharged.  Thus, because the employer had appropriate policies in place and followed them in a nondiscriminatory manner, the Court granted the employer summary judgment (a dismissal) and a belligerent, uncooperative employee was finally gone from this employer . 

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The school’s policy required all employees to report incidents of harassment to either the school’s human resources manager, whose office was off school property, or directly to the director of the school.

However, on September 3, 2002, when the maintenance employee, Edward Bernard, informed his supervisor that a co-worker, William Helms, had made racist comments and jokes, the school responded quickly to Bernard’s complaint “without regard for the procedure provided for in its deficient policy.” The supervisor had Helms apologize and reported the incident to the school’s off-site human resource manager. The human resource manager documented the incident in Helms’ permanent file and warned him against further us of offensive language. Moreover, the school’s director met with the maintenance department and instructed them to not engage in “rumors, abusive language, name calling, racial or sexual harassment, or any type of discrimination.” Finally, the human resources manager held subsequent follow-up meetings with Bernard.

Despite the employer’s warnings and instructions, in July 2003, Helms made another racially charged an offensive comment to Bernard. As a result, Bernard resigned and sued the school for race discrimination under Title VII of the 1964 Civil Rights Act.

Although the court held the school’s policy was unreasonable and deficient, it nevertheless granted summary judgment to the employer. According to the court, “an employer is liable for a non-supervisory employee’s actionable racial harassment of a co-worker only if the employer has actual or constructive knowledge that harassment is occurring and negligently failed to take prompt and adequate remedial action to stop it.” In this case, the employer acted promptly and took remedial action that was “adequate to remedy the harm done.”

By responding quickly and adequately addressing harassment complaints, employers substantially limit their liability. In addition to having an appropriate equal employment opportunity policy, it is also important that employers obtain proper training for their management staff to ensure that when harassment issues arise, they are adequately resolved.

Brody and Associates regularly advises its clients on matters such as this. Should you have any questions, please call us. We can be reached at (203) 965-0560 or info@brodyandassociates.com. ]]> http://brodyandassociates.com/prompt-employer-action-leads-to-dismissal-of-racial-harassment-claim-despite-employers-deficient-policy/feed/ 0