Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C. Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. To flesh this out, the D.C. Office of Human Rights, which administers the DCHRA, issued enforcement guidance in September 2017 to provide an explanation of this less understood protected category. It clarified that a person may not be discriminated against based on the individual’s actual or perceived “personal appearance,” which means employers may not refuse to hire someone, for example, because the individual wears a head scarf or has dreadlocks. The guidance document even provides an illustrative example of this. It states that, if Michael has a beard and applies for a job as a receptionist of a business office, where the job announcement requires applicants to have 3-5 years of experience and Michael possesses 5-6 years of experience as a front desk receptionist, the business employer cannot refuse to hire or consider Michael, a qualified applicant, because of his beard.

But, there are some limits to this rule. As the enforcement guidance makes clear, an employer can establish requirements for cleanliness, uniforms or other standards as long as the established standard is for a reasonable business purpose (e.g., for maintaining the health and safety of all individuals) and applied uniformly to everyone. This is often referred to as the “prescribed standards” exception, and is successfully argued by showing the following three elements: (1) the existence of prescribed standards; (2) uniform application of the standards to a class of employees; and (3) a reasonable business purpose for the prescribed standards. So, in our example, if Michael is hired, in most cases, the business employer may require that Michael adhere to the company’s established grooming standards along with all other employees, unless Michael has a religious reason for his beard. Unfortunately, however, the enforcement guidance, while certainly helpful, may have oversimplified this exception.

In the real-life context, employers have asked some tricky questions. What qualifies as a “reasonable business purpose”? How specific or broad should prescribed dress and grooming standards be? And what if we do not enforce the standards all the time because we have a lax enforcement policy or inadvertently miss a case or two? While advice from legal counsel can provide tailored answers to the first two questions, what is nearly certain about the last is that, if an employer does not enforce its dress and grooming standards, it is opening itself up to major legal risk. This is because, as described above, uniform application is a required element for employers to claim the “prescribed standards” exception. Furthermore, personal appearance discrimination claims are subject to the McDonnell Douglas burden-shifting framework that we described in a prior post. That is, if a plaintiff alleges employment discrimination through the use of indirect evidence, the plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination. One way for a plaintiff to demonstrate that an unfavorable action gives rise to an inference of discrimination is to present evidence of disparate treatment. This is often done by showing that she was treated differently than similarly situated employees outside of her protected class. Accordingly, if an employer does not enforce its dress and grooming standards consistently, it makes plaintiff’s case stronger, which is at least one reason why strict enforcement of such standards is so crucial.

Furthermore, although only a small number of jurisdictions extend anti-discrimination protections to personal appearance, this area of law is growing and is often intrinsically connected to other protected classes. For example, the New York City Commission on Human Rights (NYCCHR) issued new guidelines in February 2019 stating that employer policies on grooming and appearance that target, limit, or otherwise restrict natural hair or hairstyles may be unlawful and could result in a penalty of up to $250,000 per violation. This is because NYCCHR determined that black hairstyles are an inherent part of black identity, and therefore, should be protected racial characteristics. The guidance notes that protections extend to the right to maintain “natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” While the guidelines specifically focus on black communities, the protections extend to other groups, including those who identify as Latin-x/a/o, Indo-Caribbean, Native American, Sikhs, Muslims, Jews, Nazirites, and/or Rastafarians.

So what can employers do to minimize their legal risk and ensure they do not run afoul of any anti-discrimination personal appearance laws? As noted above, advice from legal counsel will assist in determining whether an employer’s business purpose is reasonable under the law, and whether its prescribed dress and grooming standards are written in a way that best shield the employer from potential claims. This is often done through a review of the employer’s dress and grooming standards in its employee handbook. Typically, a broader set of standards with legally protected carve outs (e.g., for religious and disability accommodations, health and safety concerns, etc.) is advisable. It is also prudent to enforce the standards uniformly and consistently. Other concerns, such as keeping the standards gender-neutral, should also be considered.

No “Employment at Will”
The U.S. concept of employment at will does not exist in Canada. In Canada, both employment standards legislation and the common law require an employer that terminates an employee’s employment without just cause to provide certain entitlements.

Under the employment standards legislation in each province, an employer must provide an employee notice of termination of employment in lieu of notice (usually one week per year of service to a maximum of eight weeks: more for group terminations), unless the employee is terminated for willful misconduct or willful neglect of duty. Some jurisdictions also require an employer to pay severance pay in addition to providing notice. For example, in Ontario, an employee with five or more years of service with an employer that has an annual payroll of at least $2.5 million is entitled to one week’s pay per year of service up to a maximum of 26 weeks.

The common law requires that an employer provide an employee “reasonable” notice of termination or pay in lieu of notice unless just cause exists, there is a clear agreement otherwise, or a union represents the employee. Reasonable notice for each employee is determined on a case-by-case basis and depends on a number of factors, such as the employee’s position, age, and length of service, and the availability of similar employment elsewhere. Reasonable notice at common law almost always exceeds the notice required by applicable legislation.

Pregnancy and Parental Leave
Whereas the U.S. Family and Medical Leave Act (FMLA) requires an employer to provide an employee up to 12 weeks of unpaid leave, employment standards legislation in all Canadian jurisdictions require an employer to provide up to at least 52 weeks of pregnancy and parental leave. In addition, the right to pregnancy and parental leave applies to all employees in Canada, not just to those employed by employers with 50 or more employees (as provided by the FMLA).

Discrimination and Harassment
Prohibitions against discrimination and harassment in employment under various U.S. statutes, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act of 1967, may be found in each province’s or territory’s human rights legislation (e.g., in Ontario, the Human Rights Code). Canadian human rights legislation in all jurisdictions prohibit discrimination and harassment on the basis of sex, disability, age, race, national or ethnic origin, color, religion or creed, marital status, and sexual orientation.

An employee in Canada may not file a civil action for discrimination, as is permitted in the United States. An employee may complain only to an administrative tribunal in the province he or she works, which adjudicates complaints. Administrative tribunals across Canada have wide powers to order reinstatement of employees, to require an employer to take steps to prevent discrimination and harassment, and to award monetary compensation. Monetary awards, however, are generally much lower than U.S. jury awards.

There are other significant differences between Canadian and U.S. employment laws. Local legal counsel can help to ensure that you are in compliance with all applicable laws. Other Canadian employment-related laws with which you should comply include:

• Employment standards legislation, which regulates minimum wages, hours of work, breaks, overtime pay, vacation and holidays with pay, entitlements on termination, and leaves of absence.
• Labor relations legislation, which governs certification/decertification of unions and collective bargaining.
• Occupation health and safety legislation, which governs an employer’s obligation to provide a safe workplace.
• Statutory workers’ compensation/workplace safety and insurance legislation, which governs an employer’s obligations respecting workplace injuries and accidents.
• Pay equity and employment equity legislation, which require equal pay for equal work and equal employment opportunities for employees.

For more information on Canadian employment law issues, contact James R. Hassell or Patricia S.W. Ross of the Employment and Labor Law Department of Osler, Hoskin & Harcourt LLP Barristers & Solicitors:

(416) 362-2111

P.O. Box 50
1 First Canadian Place
Toronto, Ontario, M5X 1B8

Or log on to www.osler.com, Osler, Hoskin & Harcourt’s website, which contains numerous articles on Canadian labor and employment law: canadaonline.about.com/od/labourstandards/Canada_Employment_and_Labour_Standards.htm for links to Ministry of Labour websites across Canada that provide information on employment standards, health, and safety, and labor relations, and to www.ohrc.on.ca, for Ontario’s Human Rights Commission, and links to other human rights agencies across Canada.

Provided by James R. Hassell and Patricia S.W. Ross of Osler, Hoskin & Harcourt LLP, Toronto, Ontario. www.osler.com.

Harassment Claims Continue To Capture Spotlight

In light of the sexual abuse allegations against high profile individuals and the subsequent #MeToo Movement, EEOC Acting Chair Victoria Lipnic has announced workplace harassment issues are a priority for the agency. She pointed out that harassment “causes serious harm to women and men in all kinds of jobs across the country,” and commended not only the EEOC legal teams for their work but also the individuals who came forward with complaints, many of whom alleged they suffered retaliation as a result.

One case against a country club in California involves claims of sexual conduct by a manager directed at female employees, including soliciting naked pictures, grabbing their buttocks, attempting to kiss them, and requiring sexual favors for job benefits. The EEOC lawsuit alleges that when women refused, the manager threatened termination and reduced their working hours in retaliation.

A sports bar in New Mexico also faces an EEOC lawsuit for sexual harassment of female employees by managers and coworkers. Reported behavior included requests to “show more cleavage” in their uniforms, crude comments about their breasts and buttocks, comments by male employees about their penises, text requests for sex, and unwelcome touching. This case also alleges retaliatory actions against the women for complaining.

EEOC’s Push Includes Other Claims As Well

But sexual harassment is by no means the only kind of claim being faced by hospitality employers. The recent wave of EEOC litigation also includes claims of age discrimination, pregnancy discrimination, and failure to accommodate employees under the Americans with Disabilities Act (ADA), among others.

For example, a Georgia-based sports bar is facing an EEOC lawsuit alleging pregnancy discrimination. The lawsuit alleges that a pregnant bartender was demoted to a lower-paying server position because of her pregnancy. EEOC officials brought the lawsuit stating that “physical appearance alone is never a sufficient reason for taking adverse action against a pregnant employee” and depriving her of income.

The most recent lawsuit was filed against the Grand Hyatt in New York City on August 15, alleging failure to accommodate a front desk employee with a disability. The EEOC alleges that the hotel violated the ADA by forcing the employee to stand while performing his duties despite his request for a sitting accommodation due to a spine condition. The lawsuit alleges that the hotel initially accommodated the employee by allowing him to sit, then required him to resume standing, causing him significant pain and forcing him to take an unpaid leave.

Conclusion

The wave of lawsuits by the EEOC shows that the agency is beefing up its enforcement efforts in priority areas. The EEOC’s most recent Strategic Enforcement Plan outlines the agency’s priorities and includes ensuring that employers comply with obligations to accommodate disabled employees, protecting pregnancy employees’ rights, and stamping out harassment and retaliation in the workplace.

Now is the time to review your EEO, harassment, reasonable accommodation, and anti-retaliation policies to ensure that they meet modern standards. You should also train your managers and supervisors to ensure they are enforcing those policies, and confirm that employees are aware of your company’s commitment to a discrimination-free and harassment-free workplace.

For more information, contact the author at ARyan@fisherphillips.com or 404.240.4219.

So what’s going on? There are a couple of possible explanations. In many cases, the accommodation is a private residence, not subject to the requirements of the federal Americans with Disabilities Act (ADA) or its state equivalents. Because a private residence is not subject to the ADA, the accommodation in question may not be accessible to someone in a wheelchair or with limited mobility, and the rejection might be a legitimate and permissible act.

Sometimes, however, the rejection may be a matter of illegal bias. Although Airbnb as an organization may not be biased, its design allows individual property-owners to act on their biases. Airbnb is certainly aware of the problem and has taken significant steps to curb the potential for bias, including introducing a non-discrimination policy in September 2016, and taking steps to better handle complaints of discrimination. Nevertheless, discrimination persists because bias continues to exist.

What does this mean to you if you are an employer? For corporate travel programs learning to embrace the sharing economy, it’s important to keep potential discrimination issues in mind when developing travel policies. Although most workplaces don’t require employees to use Uber, Lyft or Airbnb, any such policies should be examined to ensure that no employee is forced to use a service they believe subjects them to discrimination. If your workplace does require employees to use a sharing platform for corporate travel, it is important to have procedures in place so that employees can seek help addressing any discriminatory treatment and assistance remedying any such problems. Finally, corporate travel managers may want to do their own research to provide employees with options. The website for Accomable, for example, says it has over 1100 listings for accessible accommodations in over 60 countries.

Taking affirmative steps to address bias and discrimination will go a long way towards demonstrating to your workforce that you take their concerns seriously, and will ultimately lead to a more satisfied workforce (not to mention keeping you out of hot water as well).

Use of the E-Verify system is currently voluntary for employers unless mandated under state or local law, or if you are obligated as a federal contractor under an existing federal contract. However, Congress is considering legislation to mandate E-Verify for all employers, require a status check of all current employees not electronically verified within the three preceding years, and require termination of all employees determined unauthorized to work. Expect to see a healthy discussion on this topic in the months to come, and don’t be surprised if you are required to use E-Verify before you know it.

Before this much-anticipated debate kicks into high gear, employers should know that balancing the use of E-Verify while avoiding the implications of employment discrimination can prove to be as simple as walking a tightrope. But fear not! Here is a crash course on what you need to know about E-Verify.

The Basics: Mount The Line

The federal government’s web-based system known as E-Verify compares information from an individual’s Form I-9 against data in the U.S. Department of Homeland Security (DHS), Social Security Administration (SSA), and Department of State (DOS) records to confirm employment eligibility. An employer uses the information from the I-9 to create a case in the E-Verify system, to commence no later than three business days after the start of employment. After the case is created, the system provides a case verification number, and employers must either record that number on the I-9 or attach the case detail page to the document itself.

After inputting the information, E-Verify immediately responds with an initial case result of either “Employment Authorized” or “Tentative Nonconfirmation” (TNC), indicating whether the information on the I-9 matches the available records. Current statistics show that 97 percent of individuals who are checked through E-Verify are Employment Authorized, meaning the information entered into the system matches the information in the federal agency databases. The individual is thus considered authorized to work and the employer closes the E-Verify case.

However, when the information provided by the employee and inputted into the system does not match with DHS, SSA, or DOS databases, employers will receive a TNC notification. The employer must promptly inform the employee in private, and provide a “Further Action Notice” document for the employee to sign explaining the reason for the TNC.

The employee may choose to contest the results, in which case the employer must issue a Referral Date Confirmation from E-Verify providing contact information and instructions for the employee to contact the DHS or SSA. The employee then has eight federal government work days after initiating the referral to contact the appropriate federal agency to resolve the matter. If the matter is resolved, and the SSA or DHS update their records to reflect a match and an Employment Authorized result, the employer may close the case. However, if the individual refuses to contest the TNC or if a Final Nonconfirmation (FNC) result is issued, the employer may terminate employment.

Lucky 13: Walking The Tightrope With A Safety Net

Misuse of the E-Verify system by an employer could lead to a charge of discrimination based on citizenship, immigration, or national origin. But if you use the system properly, you will receive the benefit of a safe harbor. To avoid any implication of E-Verify-related employment discrimination, you should consider the following 13 steps:

1. Conspicuously post the “Notice of E-Verify Participation” and “Right to Work” posters in both English and Spanish.
2. Do not use E-Verify before an individual has accepted a job offer and completed a Form I-9.
3. Do not use E-Verify to verify any employee hired before November 6, 1986.
4. Do not use E-Verify to re-verify an individual for continuing employment after their employment authorization has expired. Instead, instruct the employee to either complete Section 3 of their I-9 or fill out a new I-9. Remember to use E-Verify only for new hires or rehired employees.
5. Keep copies of the following I-9 List A documents: Permanent Resident (PR) card, passport, passport card, and Employment Authorization Document (EAD).
6. Do not use E-Verify as a tool to prescreen or discriminate against individuals based on their national origin, citizenship, or immigration status.
7. Do not ask employees who receive a TNC to provide additional work authorization documentation.
8. Remember to provide a Further Action Notice explaining the reason for the TNC result.
9. Do not influence an employee’s decision whether to contest a TNC result.
10. Do not take any adverse action against an employee based on their choice to leave an E-Verify TNC uncontested. You are prohibited from taking any adverse action (including firing, suspending, withholding pay or training, or simply infringing upon the individual’s employment) against an employee unless and until the employee receives an FNC or a “DHS No Show”.
11. Do not ask employees to provide specific types of documents during the employment eligibility process.
12. Remember that simple typos can cause a TNC result, so don’t jump to conclusions during the process.
13. Finally, understand that use of the E-Verify system does not relieve you of your I-9 obligations.

Careful, Don’t Slip!

While maintaining your balance, one misstep can result in a fall. In the event you slip up, the Immigrant and Employee Rights Section (IER) of the Department of Justice Civil Rights Division reviews charges of discrimination and investigates all alleged discriminatory conduct pursuant to the Immigration and Nationality Act (INA).

If an employee suspects their employer is discriminating based on citizenship, immigration status, national origin, or other discriminatory misuse of the E-Verify system, the employee can notify IER. The agency will either contact the employer to resolve the issue or, when necessary, issue charge forms to victims of discrimination. Upon receipt of a charge of discrimination, IER takes approximately seven months to complete an investigation. Violators are subject to civil penalties, back pay awards, hiring orders, the imposition of injunctive relief to end discriminatory practices, and attorneys’ fee awards.

Dismount!

To maintain balance and avoid a tumble, you should adopt a written immigration compliance policy, train all staff on how to enforce it, and employ ongoing education of the E-Verify system. You should also consider taking advantage of the IER outreach and education programs to gain a firm understanding of the antidiscrimination provisions of the INA.

If the IER comes knocking, don’t panic. Instead, cooperate with the investigation, make the necessary adjustments, and know that you can always contact your local Fisher Phillips attorney for assistance. But you don’t need to wait until the government is on your doorstep to call upon our firm; we can assist you from your first step on the tightrope until you land safely on the other side.

For more information, contact the author at NBanks@fisherphillips.com or 404.240.5853.

Ridesharing giant Uber raised $2.1 billion in its most recent round of funding, buoyed by a valuation of more than $65 billion – a remarkable ascendance for the five-year-old company.  Its success has attracted a wave of new entrants seeking to gain a foothold in this burgeoning market.  But the road to a share of the sharing economy is fraught with legal peril.

One of the new contenders is SafeHer, a by-women-for-women ridesharing company that positions itself as a secure alternative to market leaders like Uber and Lyft.  SafeHer’s business model responds to growing concerns over allegations of rape and sexual violence against female passengers in Uber vehicles, and Uber’s opacity in dealing with these incidents.   Uber has facedmounting criticism of its protocols for screening its drivers, whom Uber continues to classify as independent contractors instead of employees.  SafeHer would staff its fleet exclusively with female drivers, and would serve only female clientele.  If SafeHer’s plans come to fruition, hoteliers will be able to add value for female guests by including the service in their repertoire of concierge offerings.

Formerly known as Chariot for Women, SafeHer had announced plans to launch operations across all 50 states on April 19 of this year.  But for those of us who have followed the legal tribulations of other ridesharing companies, the delay of its launch did not come as a surprise.  SafeHer is not the first ridesharing company to champion a women-centered business model.  But the companies that have preceded SafeHer have been thwarted by legal obstacles and threats.

Ironically, the stumbling blocks that loom largest in SafeHer’s path are federal, state and local anti-discrimination laws — laws that were passed with many of the same objectives that underlie SafeHer’s business model.  SafeHer, with its goals of helping women drivers break into thehistorically male-dominated taxi industry, and providing women passengers with the same expectations of physical safety as their male counterparts, seems to be consistent with at least the spirit of anti-discrimination laws.

But whether SafeHer’s “by women for women” business plan is in keeping with the letter of these laws is a thornier question, complicated by differences in the state and local variants of civil rights statutes.  A business operated exclusively “by women” risks violating the employer-related provisions of anti-discrimination laws, which generally prohibit hiring on the basis of gender.  And SafeHer’s “for women” policy could run afoul of related provisions that outlaw discrimination in public accommodations.

At the federal level, the governing statute is the Civil Rights Act of 1964.  Title II of the Civil Rights Act does not prevent public accommodations from discriminating on the basis of gender – this is exclusively the province of state and local government.  Title VII of the Act, on the other hand,imposes strict limitations on gender-based hiring, which apply even to well-intentioned forms of discrimination.

These limitations can be overcome if an employer demonstrates that gender is a “bona fide occupational qualification,” but this exception has been applied sparingly to cases where gender bears directly on an individual’s ability to perform a job.  Courts have held, most famously in the context of flight attendants, that “customer preference” for employees of a certain gender does not elevate gender to the status of a BFOQ.  Several skeptics and commentators have expressed doubts about the upsot of these cases for SafeHer’s business model.

But where “customer preference” is guided by gender-specific concerns about safety and privacy, federal courts have upheld gender-based hiring practices under the BFOQ rule in a number of contexts.  For instance, courts have approved of:

• Hiring male prison guards to monitor male inmates, and female prison guards to monitor female inmates, on grounds that these practices protect both female prisoners and female guards from sexual abuse;
• Hiring only female labor and delivery nurses in an obstetrics ward, out of concern for the privacy of patients, and the administrative burden of double-staffing to prevent molestation of patients by male nurses;
• Same-sex staffing of shifts in psychiatric wards with patient populations that include victims of sexual abuse;
• Preferential hiring of female TSA screeners to serve female passengers who request a same-sex screener; and
• Hiring of same-sex janitors to clean men’s and women’s restrooms in a workplace.

SafeHer’s might be able to overcome a Title VII challenge by analogizing to these precedents.  Because the company’s underlying objective is to promote rather than undermine gender equality, SafeHer could find a sympathetic judge or jury willing to extend the BFOQ line of cases to its business model.  The company’s troubles, however, would not end there.

Most states and major cities have enacted their own anti-discrimination laws, augmenting the protections afforded by the Civil Rights Act.  This article will not attempt to summarize all of these laws and their differences, for there are too many to mention. But by way of example, New York State, Washington State, New York City, and Seattle have all enacted laws that prohibit gender-based discrimination in places of public accommodation, a subject on which federal law is silent.  And while Title VII applies only to employers with 15 or more employees, the New York State andCity laws apply to employers with as few as four employees, the Washington statute applies to employers with eight or more employees, and Seattle’s ordinance applies to virtually all employers (anyone having “one or more” employees).

All four of these laws have exceptions that, like the BFOQ provisions of the Civil Rights Act, could be interpreted to permit “pro-equality” discrimination.  The Washington statute expressly permits employers to implement discriminatory policies if “appropriate for the practical realization of equality of opportunity between the sexes,” and permits gender discrimination in public accommodations for the purpose of curbing “behavior or actions constituting a risk to property or other persons.”  The New York State and City laws carve out exceptions for public accommodations based on “bona fide considerations of public policy.”

Each of these provisions could be construed to provide a safe harbor for businesses like SafeHer, which employ benevolent discrimination in pursuit of larger social goals of gender equality.  The trouble is that there may be no way of knowing without testing these laws one by one.  State and local anti-discrimination laws vary widely in their history, text and application.  There is no guarantee that this patchwork of state and local laws would be applied or interpreted consistently from one jurisdiction to the next.

Against this fragmented backdrop, SafeHer’s ambition to mount a coordinated nation-wide launch might be a bridge too far for a young company backed by a single angel investor.  A more modest launch, targeting a handful of states and cities with favorable anti-discrimination laws, could get SafeHer off to a stronger start, with less potential exposure, and better hopes of setting good precedent.

Click here for the original article.

Purpose

Councilman Brad Lander, the sponsor of the law, explained the view of many consumer advocates that the use of credit checks in employment unfairly prevents law abiding citizens from obtaining employment due to student loans or medical bills that have ruined their credit and that the use of credit histories can have a disproportionately negative effect on low income and minority applicants. “Credit checks for employment unfairly lock New Yorkers out of jobs. There is no link that can be shown between credit history and job performance and now New York City reflects that fact,” stated Lander.

Exclusions

The ban on credit checks does not apply to:

• police, law enforcement, public safety and other appointed positions subject to background investigations by the NYC Department of Investigation;
• bonded and financial services positions;
• non-clerical jobs providing access to trade secret or national security/intelligence information;
• jobs with signatory or fiduciary authority over funds valued at $10,000 or more;
• jobs where security clearance is required by any federal or state law; and
• positions allowing the employee access to modify digital security systems designed to prevent the unauthorized use of networks or databases.

Growing Trend

The law adds New York City to a list that includes 10 states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington) and the city of Chicago, all of which currently ban the use of credit checks of job applicants. Chicago (and several of the states) allow credit checks to be performed for any job involving money handling.

According to a 2012 study by the Society for Human Resource Management, nearly half of all employers utilized credit checks in evaluating prospective employees. The stated rationale for those employers doing so, according to the SHRM study, is that an individual who acts responsibly with respect to his/her own finances tends to be a better performer.

Effective Date

The New York City law goes into effect on September 3, 2015, 120 days after being signed by Mayor de Blasio.

Remedies

Aggrieved applicants and employees would have the full range of rights and remedies available to individuals asserting other rights under the NYC Human Rights Law.

Conclusion

New York City employers should look carefully at the scope of their credit and background check protocols to ensure that they are in compliance with the Stop Credit in Discrimination in Employment Act and/or fall within any of the new law’s exclusions, prior to September 3, 2015.
Please contact the author if you have any questions or require additional information.

Download the PDF here.

It’s bad enough when one has to defend against fabricated allegations about racial slurs and name calling, let alone when it apparently, in fact, happened. Such a situation is a nightmare for an employer, and to state the obvious, should never have occurred.  But never say that “it couldn’t happen in my company.”

How Could This Happen?

The conduct described in this case is reprehensible. But did it start somewhat innocently and escalate to something this terrible?  Was this a decent company asleep at the wheel and not a throwback to a place found in the recent movie, “Django Unchained”?

We can only speculate, but according to the EEOC’s lawsuit, Contonius Gill and Robert Floyd, Jr., both African-American, worked as truck drivers for A.C. Widenhouse. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility’s general manager, (who was also his supervisor); the company’s dispatcher; several mechanics; and other truck drivers, all of whom are white. The comments and slurs included “n—–r,” “monkey” and “boy.” Gill testified that on one occasion he was approached by a coworker with a noose and was told, “This is for you. Do you want to hang from the family tree?” Gill further testified that he was asked by white employees if he wanted to be the “coon” in their “coon hunt.”

The other employee, Robert Floyd, testified that when he was hired in 2005, he was the only African-American working at the company. Floyd said the company’s general manager told him that he was the company’s “token black.” Floyd testified that on another occasion the general manager told him, “Don’t find a noose with your name on it,” and talked about having some of his “friends” visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company’s dispatcher and general manager, and Floyd complained to an owner of the company, but the harassment continued, according to testimony

Action Points

Absolutely nothing will get the EEOC’s attention faster than allegations of nooses, KKK markings or use of racial slurs like “coon.” The EEOC is actively looking for such cases to litigate so as to “send messages” to discourage bad behavior. They may not be too picky about their fact checking, so if you receive an EEOC charge, even if the claim seems patently frivolous, call counsel. The EEOC is especially interested in cases where they believe that the complained of behavior suggests systemic discrimination, which may broaden into a class action or company wide scrutiny.

Our advice? Stop bad behavior before it gets so bad. Everyone expresses outrage at the allegations in this type of case, but what kind of culture allowed things to get to that point?

Ask yourself: “What is human resource’s role or upper management’s in preventing this kind of problem?”

Does your company take seriously its Complaint, Non-Discrimination and No-Harassment policies? Do you regularly train employees and supervisors . . . or, just pay lip service to the idea?  Now, ask these same questions about each of your sites.

Annually train supervisors about effective discipline and discharge. Many supervisors come up through the ranks and do not know how to deal with such conduct.  Don’t focus solely on Non-Discrimination and No-Harassment obligations – instead, demand “professionalism.”  Always promptly investigate even seemingly minor claims and respond to the claimant.

Finally, remember that lawsuits “walk into your workplace on two feet.” I am not focusing on legitimate claims. I am talking about fabricated or frivolous claims. There seems to be a self-selection process where the employees with the bogus discrimination claims file suits, and individuals with genuine grievances, simply get another job. Neither outcome is good.

So, in addition to maintaining a professional workplace where such behavior doesn’t occur, recognize the type of hire who may use such claims as a means of retaliation for some grievance, or who always assumes that any adverse action is due to discriminatory intent rather than their own performance.

The most effective action an employer can take to avoid an EEOC claim is to create a culture and environment that encourages workforce diversity and discourages employment discrimination in any form. However, even when or if those measures don’t insulate the employer from being named as a respondent in an EEOC charge filing, there are still other effective strategies that can help defend the claim and avoid litigation.

• Auditing policies to ensure compliance with antidiscrimination laws demonstrates cognizant recognition.

A robust policy that explicitly prohibits discrimination, harassment and other related conduct is a key step in the employer’s defense. A policy that: 1) specifies the classes protected under state and federal laws, 2) defines the prohibited conduct, 3) delineates a complaint procedure, 4) promotes confidentiality, and 5) identifies disciplinary action for policy violations, not only educates the workforce about, but also demonstrates the employer’s understanding of, the law.

The policy should also include a strong anti-retaliation statement, encouraging employees to report complaints of unlawful conduct without fear of reprisal and providing employees an avenue to report acts of retaliation.

• Regular, effective training of managers and nonsupervisory employees on antidiscrimination policies establishes expectations.

Providing comprehensive training to managers on how to, first, recognize the signs and symptoms of discrimination and, second, effectively address the prohibited behavior, demonstrates the employer’s commitment to prevention. Likewise, mandating employee training that is thorough and detailed and that provides realistic examples of prohibited conduct and reporting requirements, signifies the employer’s commitment to awareness. Employers should take care to reemphasize the commitment by reflecting the import of the training in performance reviews and discipline.

• A timely and remedial investigation of complaints reflects a steadfast resolve.

Responding to an employee complaint in a timely manner affirms the gravity of the concern and signals the employer’s seriousness about addressing the issues. Fashioning discipline that is not only appropriate but corrective and potent, where warranted, emphasizes that the employer’s remedial actions are designed to be effective and not merely antiseptic. Also, an important step often missed is the communication of the investigation outcome to the complainant. While confidentiality considerations exist at this stage, the employee should still be notified that the investigation has been concluded and that appropriate action is being taken, without identifying the specific disciplinary decision.

• When internal complaints are made, protect the complainant from retaliation.

Once an employee complains, the employer must exercise “super-human restraint” to avoid negative treatment of the complainant. While there is a natural tendency for one accused of misconduct to strike back at the persons who attack them and accuse them of wrongdoing, the law prohibits this action. Instead, the employer should be proactive and engage with the complainant, explain its prohibition against retaliation, and follow up with the employee later to ensure there have been no problems. Additionally, subsequent employment actions taken against the employee should be closely monitored to avoid the appearance of retribution. The EEOC will certainly scrutinize the extent to which proposed employment action against the complainant is consistent, when compared with similar conduct with actual practices and supported by documentation.

• Protect and preserve your lawfully made decisions by documenting the investigation and its results.

Throughout the process, the employer will have identified key witnesses and documents pertinent to the investigation. Maintaining a written record of the witnesses interviewed and documents reviewed validates the investigation. Preparing summaries of findings from the investigation can provide a corroborating source of information. Documenting the investigation can also prove important when necessary to confirm the frequency and duration of time spent interviewing the complainant, especially when presented with objections challenging the thoroughness of the investigation. Also, before taking any disciplinary action, make sure all the reasons for the action are documented, and there is objective evidence supporting the reasons and not contradicted by any other documentation.

• If an EEOC claim is pursued, respond with diligence.

While a quick response to an EEOC claim is often tempting—fueled primarily by the need for focus on the employer’s daily operations—avoid the temptation. A well-reasoned response, supported by proper documentation, is always a better defense. The EEOC is more likely to dismiss a claim where evidence is presented that the employer interviewed relevant witnesses, reviewed and analyzed pertinent documentation, assessed the facts and their relationship to the EEO laws at issue, and made sound employment decisions based on legitimate business factors such as poor job performance or workplace misconduct.

Also remember, regular and interactive discussions with the EEOC investigator can be an effective, but oftentimes forgotten, practice. Contact the investigator and discuss the claim—take every opportunity available to plead the employer’s case and argue its position.

• Be receptive to the prospect of early resolution in the event of a charge filing.

Even when these strategies have been implemented, sometimes employers are faced with problematic facts demonstrating the potential for monetary exposure from an EEOC claim. In those instances, the employer is prudent to consider the risk/reward analysis of resolving the EEOC claim sooner rather than later. When balancing the scales, oftentimes the cost to resolve the EEOC claim at the early stage is more favorable than the ultimate cost to the employer’s organization, should litigation ensue. Litigation can involve the immeasurable cost of distractions to the employer’s key staff involved in the underlying conduct, who will inevitably have to invest time and resources unrelated to the company’s daily operations to fight the claim, and can negatively impact employee morale, cause poor productivity and create publicity that can potentially harm the employer’s reputation.

Even if the employer effectively prevents employees from discriminating against co-workers and never bases an employment decision on an employee’s protected characteristic, there may still be instances where the EEOC remains unsatisfied. Nonetheless, utilizing these good-faith efforts to prevent and remedy employment discrimination could still serve the employer well in avoiding the EEOC’s radar.

Purpose
New Jersey state Senators Peter Barnes and Jim Whelan, sponsors of the legislation, explain:

New Jersey state Senators Peter Barnes and Jim Whelan, sponsors of the legislation, explain: The stigma of being unemployed can have a greater impact on whether or not someone gets an interview or a job offer than the person’s qualifications or experience… Unfortunately, employers assume that a long break in employment is a reflection of the candidate’s inability to effectively do the work rather than a byproduct of a bad economy.…Being unemployed can have serious financial and emotional effects on any individual, particularly if it is for a long length of time, leaving them with a constant feeling of hopelessness and defeat when looking for a job. This pressure is often compounded by the fact that the longer someone is unemployed the more difficult it is for them to reenter the workforce.

Who is Covered?
The law applies to all private and public sector employers and employment agencies in New Jersey.

What is Prohibited?
The new law protects the unemployed by banning employers from basing decisions with regard to hiring, compensation or the terms, conditions or privileges of employment on the fact that the applicant is, or has been, unemployed.

What is Permitted?
Nothing in the law prohibits an employer from considering, and employers may still inquire about, the circumstances of an applicant’s separation from prior employment. In addition, employers may permissibly (i) base decisions and post advertisements identifying job-related qualifications, including a current and valid professional or occupational license or minimum level of education, training or experience; (ii) limit the applicant pool or give preference to only those currently working for that employer; and (iii) consider, or base compensation or terms and conditions of employment on, a person’s actual amount of experience.

Remedies Available
Employers are liable for civil penalties of $1,000 for the first violation, $5,000 for the second violation and $10,000 for each subsequent violation, collectible by the New Jersey Department of Labor and Workforce Development. There appears to be no private cause of action in New Jersey, unlike the New York City law.

What New Jersey Employers Should Do
Clearly it would be prudent for employers to review all job advertisements and related materials and remove any language that states or suggests, in effect, that only currently employed individuals can apply or be considered. Individuals who conduct job interviews should be made aware of the new law, and advised to eliminate job interview questions that focus on an applicant’s present unemployed status. However,it certainly appears permissible to inquire about the reasons why the applicant left his/her last employment, and nothing prevents an employer from researching an applicant’s background, employment history and criminal record. Of course, it is always advisable, as with all other employment discrimination protections, to focus the job interview and hiring process on the applicant’s experience, training, education, skills and qualifications to perform the duties of the job, rather than questions encroaching on an individual’s protected classification.

Up Next
Similar legislation is pending in 15 other states.

Conclusion
New Jersey employers should continue to make every effort to focus the job application process, and base hiring decisions, on the individual’s education, skills, experience and other qualifications for the particular job sought, rather than on protected classifications or characteristics that are now extended to unemployment status.