Discrimination & Harrassment

Many employers require employees and applicants to take personality testing (think Myers-Briggs). Others are seriously considering adding this as a component of their hiring and employee engagement efforts. Companies want to get a sense of an individual’s opinions, attitudes, feelings, motivations, preferences, interests, emotional makeup, and style of interacting with others. This information, some believe, can help employers make predictions regarding job performance and success. At the very least, it allows employers to get to know an applicant through more than just the traditional interview process. These tests, however, raise many legal issues, particularly in the areas of potential discrimination claims and privacy concerns.

As an initial recognition, personality is not a protected class. Indeed, courts have routinely held that someone’s personality is a legitimate, nondiscriminatory reason to not hire an applicant or take adverse employment action against an employee. Yet personality testing still has the potential of violating the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”). For example, if an applicant can show that the personality trait for which the employer screened was really a mask for discrimination of a protected class, the employer could be found to violate federal discrimination laws. So, if the employer is screening for a personality trait it connects with a protected class and makes its decisions based on that trait (possibly as a proxy or substitute for that class), that can constitute discrimination.

Furthermore, Title VII, the ADA, and the ADEA all have requirements for all employee testing that employers must adhere to when giving a personality test. For example, Title VII permits employers to administer professionally developed ability tests and take action based on the result. But, such tests must be implemented in a way that does not discriminate against protected classes, and ideally validated in advance as not having a discriminatory effect. Furthermore, employers are prohibited from adjusting the test scores based on an individual’s protected characteristics; using different cut-off scores for different protected classes; or otherwise altering the results of the test in any way. Lastly, the test must be job-related for the position at issue and consistent with a business necessity.

Testing clearly presents risks – of claims of discrimination, in addition to actual proof of such behavior. There have been numerous lawsuits related to personality testing under the ADA, Title VII, and the ADEA, with topics litigated including:

  • allegations of bias in determining traits important for the job
  • an employer purportedly asking questions that implicate protected characteristics
  • claims of bias in administration and scoring
  • whether the testing is a prohibited pre-offer medical examination
  • whether the test suggests a disability or a perceived disability based on the results, and
  • allegations of administering the test to discriminate based on age.

So, before you implement, add or change tests for employees or applicants, you will want to consider the risks they pose and balance that against the expected benefits of the testing.

Personality tests also raise potential privacy issues. While personality tests do not appear to violate the federal Employee Polygraph Protection Act, they may violate more restrictive state laws. For example, a Massachusetts law prohibits testing that renders an opinion on a job applicant’s honesty. Employers may also face claims based on the intrusiveness of the questioning (i.e., the questions are highly personal and/or offensive), or a failure to protect the privacy of the results. These state-law claims have thus far been brought have not seen notable success, but they have also not been tested nationwide, and new state and local privacy laws are enacted every year.

As personality testing becomes more and more popular among employers, interpretations of existing laws will inevitably become clearer and more settled. But new laws will likely join them, creating regular confusion and doubt. The best bet is to work your favorite employment counsel to help review and craft a personality testing policy that both conforms with existing law and is flexible enough to evolve as the issue changes over time.

Reversing itself, the Second Circuit held on Monday, February 26, that sexual orientation discrimination is discrimination “because of . . . sex” under Title VII in Zarda v. Altitude Express. The Second Circuit’s decision aligns it with the Seventh Circuit and places it squarely at odds with the Eleventh Circuit.

Continue Reading at Above The Law

Late last year, to protect hospitality workers from sexual harassment and assault, the Chicago City Council passed what is known as the “Hands Off Pants On” ordinance.  This legislation requires all Chicago hotels to:

  1. provide a “panic button” for employees working alone;
  2. adopt an effective anti-sexual harassment policy; and
  3. face real “teeth” such as fines and other penalties for repeat offenses or for retaliating against workers who raise complaints.

While the law’s details are interesting, what it represents more broadly offers a lesson for all employers.

First, the ordinance appears unique in requiring a specific action to protect vulnerable workers:  employers must provide all employees who work alone in guest rooms or restrooms a “panic button” (or other portable emergency contact device) that alerts and summons hotel security or management to their location in response to a crime, sexual harassment or assault, or other emergency.  While existing federal and state laws created a duty for employers to protect its employees, this legislation uniquely sets out a specific method they must use to address a specifically risky situation.  This law resulted after many hospitality employees reported on years of assaults and being subjected to hotel guests’ inappropriate behavior.

Second, this local law requires hotels to develop, maintain, and comply with a written anti-sexual harassment policy that protects employees from assaults and harassment by hotel guests.  While many hotels likely already had general policies, this ordinance suggests that local lawmakers concluded the policies were not being complied with or were ineffective.  The new law includes detailed requirements for the policy that go beyond normal employer rules, including (i) instructing employees to stop working and leave the area of any perceived danger, (ii) providing temporary work assignments for complaining employees while a guest remains at the hotel, and (iii) providing paid time off for employees to file police reports or testify in resulting legal proceedings.

Finally, clearly anticipating a possible weakness in the panic button provision, the ordinance also makes it unlawful for hotels to retaliate against employees for reasonably using a panic button or speaking out about a violation of this law.  Further, the ordinance provides daily fines for violations, and states that hotels with 2 or more violations in any 12-month period may have their business license suspended or revoked.  For local hotel operators, those are potentially serious penalties.

But if you are not a Chicago area hotel, why does this law matter?  Well, it should remind all employers that they need to take specific steps to protect all employees, including uniquely vulnerable employees, from assaults and sexual harassment.  One-size-fits-all policies that are not effective will not be enough.  If employers do not take sufficient steps that really work, local or state authorities may require certain additional actions.  As with this Chicago ordinance, those requirements might be detailed and costly, with a real impact on business operations.

Likewise, this Chicago law underscores that employers must seriously address issues of employee sexual harassment and assault – whether by co-workers, visitors or customers – and take all reasonable steps to prevent it, as well as addressing it when it happens anyway.  Failing to act, whether in a community generally, an industry specifically, or at a single worksite, causes real harm to employees and liability to employers.  Further, employers who are deemed “unresponsive” to such issues or “unwilling” to protect their employees may receive public scorn, harm employee relations and their public reputations, and may even get legislative attention they certainly should want to avoid.

In today’s internet-driven world, employers have never had more options from which to recruit new hires. Sites like Zip Recruiter, Monster.com, and Career Builder specialize in talent acquisition, serving as stand-alone classified pages of sorts. Employers also can utilize ever-present social media channels, like Facebook and LinkedIn, to find the best candidate for a position. The old rules of hiring, however, still apply even to these modern recruiting avenues.

Recently, the Communications Workers of America (“CWA”) filed a class action lawsuit against Amazon, T-Mobile, Cox Communications, and Cox Media group alleging age discrimination in their Facebook ads. Specifically, the complaint alleges these employers, and many others, have adjusted the settings on their job advertisements to target potential employees under 40. Furthermore, Facebook has a feature that allows the advertiser to see why an individual saw the specific add (i.e., did he or she meet the targeting criteria for the ad).

This suit poses many interesting questions. First, does advertising on Facebook and other social media sites alone mean the pool from which employers are pulling candidates skews younger, or is social media so ubiquitous that it does not make a difference?  If the ubiquity of social media means it does not create discrimination issues, then can employers engage in targeted advertising?  In other words, are there non-discriminatory criteria employers can use to take advantage of social media’s wealth of built-in information?  Can they create ads that will reach those best qualified to apply versus creating a general ad that may flood their HR team with wholly unqualified applicants?

Another interesting question will be how social media differs from traditional advertising. In an earlier era, employers could similarly target younger applicants by selecting when and where they advertise. For example, an employer could take out an ad in a magazine it knows is popular among the age 18-35 demographic. Or a company could advertise a job opening during a television show popular with the same section of the population. Is advertising through targeted Facebook ads truly different simply because there is written proof the employer selected an age range?

These are all very complex questions that do not have an immediate answer. Employers, however, always need to be cognizant of how and to whom they focus their job-opening advertisements so as not to run afoul of the various anti-discrimination laws – or even draw unwanted attention from plaintiff’s lawyers or labor unions. We are happy to advise and assist in creating hiring processes and policies that will both protect your business and help you find the best candidates for your positions.

Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether this is a long- or short-term trend. It is, however, an opportune time for employers to review their own policies and procedures in place to prevent and respond to claims of sexual harassment.

Sexual harassment policies should be clear and unambiguous as to what is not appropriate for the workplace. They should prohibit unwelcomed sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Policies should also make it clear that submission to such conduct must not be an implicit or explicit condition of employment, that response to such conduct will not serve as a basis for continued employment, and that such conduct will not be permitted to interfere with an employee’s work. In sum, the goal of any policy should be to clearly prohibit both specific harassment and the creation of a hostile work environment.

An effective policy must go beyond prohibiting demands for sexual favors or inappropriate physical touching at work. Actions such as sexually-oriented “jokes” or “teasing” should not be permitted in the workplace. Offensive flirtations, repeated verbal abuse of a sexual nature, degrading comments about appearance, and the display of sexually suggestive or explicit materials must also be clearly banned. Employers should also clearly state that subtle pressure for sexual activity, physical contact or blocking of movement are also inappropriate.

These prohibitions, however, do not mean employees cannot have friendly interactions. Indeed, we recommend including a caveat that the policy does not consider things like occasional socially acceptable compliments or consensual social relationships as harassment. The stated goal of the policy should be to eliminate unwelcomed, intimidating, hostile, or offensive behavior. It should also be noted that the policy applies to and protects employees of all genders.

As important as a strong anti-sexual harassment policy is, there must also be a complete procedure for enforcing it. This procedure should have at least two reporting mechanisms. The first should be what would be considered the “normal” reporting mechanism, an employee, position or department designated to receive complaints of harassment and investigate. There also needs to be a secondary reporting mechanism for when normal person is either the subject of the complaint or in a position where investigation may be too difficult. For example, if the normal investigator is the head of HR and the accused is her second-in-command, then the secondary reporting mechanism would be best to use. The goal is for an impartial, objective investigation to occur – not one that is just impartial, but also one that is properly perceived as impartial too.

The complaint procedure should also guarantee as much confidentiality as possible. Victims, witnesses, and those who report harassment should be assured their information will be kept as confidential as possible while still conducting a thorough investigation. They should also know that non-frivolous complaints will not result in discipline. So, if they report behavior in a good-faith belief that it violates the sexual harassment policy there will be no negative consequences even if the investigation cannot substantiate the claim. In contrast, complaints made in bad faith, to retaliate or harass, or to otherwise abuse the system should not be tolerated.

Every investigation into a complaint or possible situation of harassment must be thorough, objective, and unbiased. Investigators must seek out and interview witnesses. They should make it clear that neither the complainant nor the accused should have any inappropriate contact with the witnesses during the investigation. Investigators should also seek any documentation, video surveillance, or other tangible evidence of the alleged events available to them. All reasonable steps should be pursued to try to get as clear of a picture as possible as to what truly happened.

Lastly, the policy should clearly define the consequences of such unacceptable behavior. Recommended action for substantiated violations can range from a simple written warning all the way up to and including termination – whatever is necessary to stop the behavior and ensure it is not repeated and the victim (and others) are not at further risk. It should also be made clear that while discipline for violations of the policy may be progressive, the employer reserves the right to implement whatever punishment it deems appropriate, including termination.

Employers know that sexual harassment is a serious issue and should not be tolerated in any workplace. Beyond the civil liability it may bring, it makes a workplace undesirable and saps employee morale. It can hurt a company’s brand, reputation and standing in the business community. This general outline as to how such policies and procedures should work is a start, but smart employers will reach out to counsel to review and update their policies and procedures and make sure they are never the subject of any similar negative headline news articles.

 

 

California companies with five or more employees are subject to new legislation that prohibits criminal background screenings prior to a conditional offer of employment.  This legislation also prohibits requesting information about criminal history on an application or at a preliminary point in the hiring process.  Affected employers should carefully review the law’s requirements as set out in this advisory from attorneys from Troutman Sanders’ Labor & Employment and Financial Services Litigation Sections.

Read “California’s Statewide “Ban-The-Box” Law To Go Into Effect January 2018” here.

United States executive agencies are practically always on the same page when presenting to the public. So, it is incredibly unusual to see two such agencies taking positions directly contrary to one another in pending litigation. This, however, is exactly the current situation between the U.S. Department of Justice (DOJ), headed by Attorney General Jeff Sessions, and the Equal Employment Opportunity Commission (EEOC), chaired by Victoria Lipnic.

Last week, Mr. Sessions issued a memo setting out the Justice Department’s stance that Title VII does not protect individuals against discrimination on the basis of “gender identity per se, including discrimination against transgender individuals.” The memo states that the DOJ is now taking the position that “sex” (as used in Title VII) only means “biologically male or female.” This is a reversal of its 2014 policy under then-Attorney General Eric Holder that the word “sex” in the statute “extends to claims of discrimination based on an individual’s gender identity, including transgender status.”

Notably, the DOJ’s position now is directly contrary to the EEOC’s position on the matter. The EEOC’s position is that transgender status is protected under Title VII. In fact, the EEOC just filed suit against a tire company in Denver over alleged discrimination against a job applicant on the basis of transgender status. This is consistent with the EEOC’s 2016 Strategic Enforcement Plan, which includes “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex” as a top enforcement priority.

The DOJ has also come out swinging against the EEOC in a pending lawsuit on this very issue. In a case pending in the U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express, the plaintiff, a skydiver, claimed that his employer fired him because of his sexual orientation. A three-judge Court of Appeals panel previously ruled that the instructor had no claim for sex discrimination under Title VII. However, the full court (as opposed to a three-judge panel) has agreed to review that decision.

So, the Second Circuit then asked the EEOC to file an amicus (“friend of the Court”) brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief states that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

Not to be outdone, the DOJ also filed an amicus brief with the Second Circuit in opposition to the EEOC (even though the Second Circuit had not asked for the DOJ’s input). The DOJ argued that this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” The DOJ went on to state that the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” The Court heard oral arguments in the case in late September 2017, with the EEOC and DOJ completely at odds.

This is not the only case where the DOJ has taken a position adverse to the EEOC’s position.  In a well-known case involving a Colorado cake shop which refused to make a cake for a gay couple in 2012 known as Masterpiece Cakeshop v. Civil Rights Commission (which is now pending before the U.S. Supreme Court), the Colorado Civil Rights Commission relied on a state statute that prohibits sexual orientation discrimination in public accommodations to order the cake shop to stop discriminating against same-sex couples. The shop owners contend that violates their First Amendment rights to free speech and free exercise of religion.

The DOJ has recently filed an amicus brief in favor of the cake shop owners. The DOJ argues that baking a cake for money is “expressive conduct” and “association” that raises First Amendment concerns, and a state’s interest in protecting gay residents is not strong enough to justify “compelling” this “creative process” for same-sex couples. While not an employment case, this position is clearly contrary to the EEOC’s position on these issues when the workplace is involved.

It seems that the EEOC and the DOJ will remain at odds on these issues in the coming months (and possibly years). It will be interesting to watch how this impacts courts’ analysis in these cases and whether any enforcement efforts or positions will change as a result.

Religious issues in the workplace are challenging both from a legal and practical standpoint. Managers and HR professionals want employees to feel accepted and included, and they don’t want anyone to feel targeted or mistreated based on their religious beliefs or practices. Problems can arise, however, where an employee’s religious practices interfere with the employee’s job or professional interactions. How do you accommodate the employee’s beliefs while also ensuring that the employee meets the job’s requirements? Continue Reading Handling An Employee Who Won’t Shake Hands For Religious Reasons

On Tuesday, April 4, 2017, the Seventh Circuit Court of Appeals became the first Federal Appellate Court to hold that Title VII of the Civil Rights Act of 1964 protects discrimination on the basis of sexual orientation.  While some states have already enacted laws protecting against that type of discrimination, and many employers have added such protections into company equal employment opportunity policies, this marks the first time sexual orientation has been deemed protected at this level under the federal Civil Rights Act. Continue Reading What Does The Landmark Ruling Declaring Sexual Orientation Discrimination Illegal Under Title VII Really Mean?

A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees.  In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position.  Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position. Continue Reading Are Disabled Employees Entitled to Be Reassigned to an Open Position?