Federal laws make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. The firm has pursued a number of claims like this, including one I posted about earlier, which you can read about by clicking here.
This includes both intentional discrimination, and some forms of
accidental discrimination through making rules that end up disadvantaging a particular type of person. For example, a rule requiring manual laborers to speak English may be unlawful because it has an adverse impact on national origin and is not required for the work. The same is true, in most workplaces, for a rule against hiring anyone with an arrest or conviction record - unless the particular criminal conviction is of importance for the particular job. I expect many, many employers maintain illegal rules about background checks. I will post more about this later.
It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. This protects complainants and witnesses in these kinds of cases.
Most employers with at least 15 employees are covered by these laws (20 employees in age discrimination cases).
In addition, Section 1981 of the Civil Rights Act of 1866 prohibits discrimination in employment on the basis of race by any employer, even those with fewer than 15 employees. There is also a separate law covering unequal pay between men and women.
The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
Intentional employment discrimination based on race, skin color, national origin, accent, language, citizenship and related issues
Race discrimination involves treating people unfavorably because of their race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).
Race discrimination also can involve treating someone unfavorably because, for example, the person is married to a person of different race, or because the person is a member of an organization that is generally associated with people of a certain race.
Color discrimination involves treating someone unfavorably because of skin color - for example, a lighter-skinned black person who discriminates against darker-skinned black people. Thus, even if the discrimination is not based on race, if distinctions are drawn by skin color it is still illegal.
National origin, accent, language
National origin discrimination involves treating people unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
For example, An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An
English-only rule, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.
An employer may not base an employment decision on an employee’s foreign accent, unless the accent seriously interferes with the employee’s job performance.
An employer cannot discriminate based upon an individual's citizenship or immigration status, e.g., cannot refuse to hire someone with valid work authorization simply because they are not a U.S. Citizen. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract.
Illegal uses of criminal background in employment decisions
Did you know that it might be illegal for employers to refuse to hire someone because of their criminal background? The Equal Employment Opportunity Commission has issued guidance defining the legal and illegal uses of criminal background information, and many employers are probably in violation and can be subject to a lawsuit.
If an employer refuses to hire because of an arrest that did not result in a conviction, this could be illegal. Anyone can be arrested, and the arrest itself doesn't prove that anyone did anything wrong. So, in addition to the fact of the arrest, the employer would also have to have some kind of proof that the person arrested actually did something wrong, and that this is related to the job the person has applied for.
Convictions, guilty pleas, no-contest and non-adjudications
A conviction - whether after trial, or by guilty plea, or by nolo contendere plea, or even by what is called
non-adjudication, is sufficient proof of the misconduct. But it may still be illegal to refuse to hire someone because of a conviction.
This can happen where convictions are treated differently in people of different race, sex, etc. These kinds of cases are similar to many others: the complainant must prove that the race, sex, etc. motivated the decision by showing with examples that the employer treats, e.g., black criminals worse that white criminals in the hiring process. On the other hand, and somewhat ironically, if the employer is too consistent, that is, if the employer maintains any hard-and-fast or consistently applied
rules about how convictions are treated in hiring, the employer could be opening itself up to different kind of case, one which challenges the impact of the rule on black people or men or some other protected class.
Zero Tolerance and other illegal rules using convictions
It is this kind of
rule case that I want to focus on today. These cases are significantly more complex than other employment discrimination cases.
First, the person challenging the rule must show that there is a rule. This can be as simple as pointing to the place in the handbook where the employer describes its conviction policy - but very often it is not so simple. Employers are often savvy enough to avoid any admission in the handbook, and instead just tell the hiring supervisors that they have an unwritten policy of zero tolerance. In that case, ideally the challenger would have heard the supervisor admit to this at the interview, or even have additional concrete evidence that the policy exists.
Next the challenger must prove the rule is likely to have hurt his class more than others. Black people, for example, should have little trouble with this because the EEOC has frequently referred to the statistics proving this in that case.
At that point it becomes the employer's burden to prove that the rule is
job related and consistent with business necessity. One way to accomplish this is for the employer to use their own statistics - i.e., on recidivism, or risk of recurrence, together with a showing that the recurrence would negatively impact the employer. The EEOC has published Uniform Guidelines on Employee Selection Procedures which describe this method. But it is quite difficult to do, and often requires limiting the kinds of jobs impacted to particularly sensitive ones - such as childcare or positions of financial trust - and to particular kinds of convictions related to the job.
The second way to prove this requires showing, in essence, that the rule is not in fact a hard-and-fast one, but that it is actually a
targeted screen which considers at least three factors:
- The nature and gravity of the crime,
- Time elapsed since the crime or sentence served, and
- The nature of the job.
It seems likely that many employers are not following these procedures and are not giving individualized consideration to the potential employees with convictions. If this is so, a labor lawyer may be able to help. However, be aware that there is a 6-month time limit on bringing these charges, and if nothing is filed in this time the issue cannot be challenged.
Veterans also have special rights in the workplace under the Uniformed Services Employment and Reemployment Rights Act - the most important of which is the right to leave the job for military service (even for a number of years) and to demand reemployment on your return from service. The firm is currently pursuing a case in which a Mississippi Department of Corrections employee was denied his stautory rights under this law. More about this in a forthcoming blog post.
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