March 2012

By Carrie Corcoran

(Revised as of 4/12/12)

On March 28, 2012, legislation was introduced before the New York City Council (“NYC Council”) that, if enacted, will extend employment discrimination protections to unemployed job seekers.  In a climate of persistently high unemployment rates and many discouraged – and disgruntled – jobless persons, it should come as no surprise that, along with New York City, legislatures across the nation are considering drastic measures.  Some of these laws have even passed. 

A year ago, New Jersey was the first state out of the gate when it enacted legislation to protect unemployed job seekers.  New Jersey’s legislation, however, is much narrower than many subsequent efforts by state and local governments to protect the jobless.  Specifically, New Jersey only prohibits job advertisements that exclude unemployed candidates.  The legislation explicitly precludes a private cause of action for spurned job hunters.  Rather, it provides for fines ranging from $1,000 for the first violation, $5,000 for the second violation, and $10,000 for additional violations.

Contrast the District of Columbia’s new legislation, signed by the mayor March 19, 2012 and currently undergoing its (usually pro forma) review by Congress.  This law prohibits an employers or employment agencies  from not only disqualifying unemployed persons in want ads, but also from failing or refusing to “consider” or “hire[] an individual as an employee because of the individual’s status as unemployed.”  The legislation expressly permits employers and employment agencies to “examin[e] the reasons underlying an individual’s status as unemployed” when ”making employment decisions,” including “assessing an individual’s ability to perform a job.”  Like the New Jersey law, the legislation forecloses a private cause of action and, instead, empowers the District of Columbia Office of Human Rights to fine offenders.  

The legislation introduced before the NYC Council more closely resembles the District of Columbia’s legislation than it does New Jersey’s.  The proposed law seeks to broadly ban employers and employment agencies from basing employment decisions “on the unemployment status of the applicant or employee.”  The scope of the legislation, however, is somewhat limited by an exemption that permits employers to “request[] or us[e] unemployment status information that is substantially job related” for a “bona fide reason.”  The proposed law also allows employers to “inquir[e] into the circumstances surrounding an applicant’s or employee’s previous termination or demotion, including whether such adverse action was based on cause.”  Additionally, the legislation would proscribe job ads that exclude unemployed applicants.  Under the New York City Human Rights Law, of which this proposed legislation is part, employees benefit from an expansive, employee-favorable interpretation, a three-year statute of limitations, and the full array of damages, including punitive damages.  Thus, unlike the District of Columbia and New Jersey laws, disappointed job seekers have a private cause of action.

With respect to prohibiting employers from issuing advertisements that exclude jobless applicants, these provisions are less controversial and, to whatever extent this practice exists, inadvisable.  Besides fairness issues and potential bad press, this practice may also lead to litigation under existing anti-discrimination laws.  The NYC Council’s press release announcing the legislation highlighted the potential disproportionate impact on minorities due to the higher rates of unemployment among African Americans and Hispanics.  At an Equal Employment Opportunity Commission meeting last year that explored the treatment of unemployed job seekers, a Department of Labor representative also reviewed statistics and concluded that such exclusions may cause “disparate impacts among racial minorities, among workers with disabilities, and among older workers.” 

But transforming unemployment status into a protected category is a horse of a different color.  This blog has previously commented on the nettlesome nature of a similar proposal in the context of President Obama’s American Jobs Act.  Although a job applicant’s race or gender (for example) bears no rational connection to an applicant’s qualifications for a particular job, an applicant’s job history – including its continuity and the reasons for any gaps – may relate to an applicant’s relative merit for a particular position.  A job seeker who has been unable to obtain, or retain, employment due to an inability to show up to work (or interviews) on time is justifiably a less attractive candidate than someone who, all other things being equal, has no punctuality issues.  The explanation that “I decided not to hire the candidate who was fired for persistent tardiness” might tread uncomfortably close to unlawfully considering an individual’s status as unemployed.  Notably, the New York City law would permit employers to inquire about the employee’s termination for tardiness.  But, in litigation, the employer would have to undergo the burden of proving that punctuality was “substantially job related” and that it had a “bona fide reason” for using the information regarding the prior termination in making its decision.    

Although legislators are rightly concerned with assisting jobless persons and reducing barriers to their re-entry into the workforce, the unintended consequence of these laws may be to increase the cost of doing business for employers due to an influx of new lawsuits by rejected applicants.  This result might increase the employment opportunities for labor and employment attorneys, but not the millions of unemployed.     

by Michael A. Kalish and Adam Tomiak

Sens. Tom Harkin, D-Iowa, Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt. recently introduced the Protecting Older Workers Against Discrimination Act, a bill intended to lessen the burden on age discrimination plaintiffs under the Age Discrimination in Employment Act (“ADEA”).  The bill seeks to return age discrimination plaintiffs to the standard the Senators believe they were subject to prior to the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., 557 U.S. __, 129 S. Ct. 2343 (2009).

In Gross, the Supreme Court held that age discrimination plaintiffs must show, by a preponderance of the evidence, that “but for” their age, they would not have been subjected to the adverse employment action.  This contrasts to the burden of persuasion under Title VII, which allows plaintiffs to state a claim based on race, color, religion, sex, or national origin, by showing this characteristic was “a motivating factor” for the adverse employment action.  The Court concentrated on significant differences in the statutes’ language and the history of amendments to each.  As a result, the Court vacated the Eighth Circuit’s decision to allow a “mixed motive” standard, i.e., that the adverse employment action resulted from both discriminatory and non-discriminatory considerations, to sustain an ADEA claim.

The bill seeks to amend the ADEA, as well as the Americans with Disabilities Act and Rehabilitation Act of 1973 (statutes to which lower courts have applied the Gross holding’s reach), to specifically allow mixed-motive claims to discrimination plaintiffs.  In addition, the bill would allow claims under these statutes to be interpreted under the McDonnell Douglas burden-shifting framework, which provides that once an employee has satisfied her or his lowered burden of proof, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the challenged  employment actions.

If enacted, this bill would potentially lower the standard of proof for ADEA plaintiffs by allowing them to show only that their age was one of many factors, rather than the dispositive factor, in their employer’s decision to take an adverse employment action against them.  This could result in increased exposure to employers defending against age discrimination claims.

By Lauri F. Rasnick and Margaret C. Thering

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The Equal Employment Opportunity Commission (“EEOC”) has once again turned its focus to caregiver discrimination.  On February 15, 2012, for the first time in nearly 30 years, the EEOC held a meeting about caregiver and pregnancy discrimination.  As “caregivers” are not specifically included as a “protected category” under any federal law, the EEOC discussed the various laws which would possibly prohibit certain caregiver discrimination, such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and Amendments Act, and the Family Medical Leave Act.  The EEOC specifically discussed accommodating pregnant women under these laws (including light duty and modified work), lactation accommodation, EEOC enforcement of these laws, flexible schedules, paid time off, pay issues, eldercare, and the role of unions in the context of the Pregnancy Discrimination Act.

While the EEOC’s historic meeting was the first of its kind, the topic is not new to the EEOC.  In 2007, the EEOC issued enforcement guidance pertaining to caregiver discrimination.  In 2009, it released a best practices guide which it revised and updated 2011.

Why all the attention?

Some of the reasons for the increased attention which were provided at the EEOC’s meeting included:

  • More women in the workplace:  According to the Bureau of Labor Statistics, women currently make up 47% percent of the nation’s workforce.
  • Unequal treatment of caregivers:  Testimony was presented that there is a measurable “motherhood wage penalty” of as much as 5% per child, even when controlling for education, experience, and other factors known to affect wages.
  • More claims: The Center for WorkLife Law documented an approximate 400% increase in caregiver discrimination lawsuits between 1999 and 2008.
  • Men speaking out:  Males who believe they have been treated unfairly because of caregiver responsibilities are becoming more vocal in asserting claims

What to do?

The recent attention to caregiver discrimination sends a message to employers that this is an issue that needs to be on their radar.  In light of the recent focus on caregiver discrimination and the EEOC’s published “best practices”, employers should:

  • Re-evaluate procedures and policies regarding promotion, hiring, pay, attendance, pregnancy and other family related leave to determine whether such policies and procedures could have an adverse impact on caregivers.
  • Consider including provisions in EEO policies regarding “caregiver” discrimination, including definitions of “caregivers,” possible examples of caregiver discrimination, and a prohibition on retaliation for employees making caregiver discrimination complaints.
  • Ensure that any discrimination complaint procedure applies to complaints of caregiver discrimination.
  • Thoughtfully consider flexible work arrangements and whether there are flex-time options that can be offered to employees.
  • Engage in and document an interactive process when evaluating possible accommodations for individuals seeking accommodations for pregnancy or caregiver responsibilities.
  • Regularly train managers and employees to make sure that they understand their obligations as it relates to caregiver discrimination.
  • Document legitimate business reasons when denying certain accommodations or taking employment actions.
  • Ensure that policies prohibiting discrimination against caregivers and providing for accommodations for caregivers apply equally to both sexes.

Undertaking the above steps will help employers prepare for the EEOC’s continued focus on these issues.  For more information please see our earlier client alert on how to prevent discrimination against caregivers.

by Steven M. Swirsky and Michael F. McGahan

On January 25, 2012, the National Labor Relations Board’s (“NLRB”) Acting General Counsel (“AGC”) Lafe Solomon issued a second report on unfair labor practice cases involving social media issues. We discussed his earlier report in our Act Now Advisory of October 4, 2011.

The new report covers an additional 14 cases, all of which fall into the same two categories as the cases discussed in the earlier report, namely: (1) termination of employees resulting from statements made in social media forums about their working conditions or their employers; and/or (2) claims that an employer’s social media policy violates the National Labor Relations Act (the “Act”) because its prohibitions may “chill” employees in the exercise of their rights under the Act to engage in concerted activity for their mutual aid and protection. Again, the report emphasizes that the Act’s provisions apply to workplaces where the employees are not represented by a union and where there is no union activity, as well as to unionized employees.

 Read the full advisory online