Thursday, June 30, 2016


The United States Court of Appeals for the Fifth Circuit has rejected an unsuccessful job applicant’s claim that he was denied employment because of his criminal record.  The Plaintiff in Noris Rogers v. Pearland School District unsuccessfully argued that his history of felony convictions for drug offenses, including the sale of heroin, amounted to race discrimination under a disparate impact theory of liability.

In recent years, the Equal Employment Opportunity Commission (“EEOC”) has filed a number of high-profile lawsuits against companies, taking the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII of the Civil Rights Act of 1964.  The stated rationale for the EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects, or has a “disparate impact” on African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction. 

In Rogers, the African-American Plaintiff applied for a job as a master electrician for a Texas school district.  On the application, Rogers responded “No” to all questions regarding criminal history, including whether he had ever been convicted of or pled guilty to a criminal offense, and gave his consent for a criminal background check.  The background check revealed that Rogers had multiple felony drug convictions.  When asked by the school district’s human resources director about the incorrect information, Rogers became angry, raised his voice and had to be asked to leave.  The school district later hired an African-American male for the position.

A few months later, the successful applicant resigned and the position again became available.  Rogers reapplied, this time disclosing his criminal record on the application.  The school district did not hire Rogers because of his “lack of candor” in disclosing his criminal record the first time.  In his lawsuit, Plaintiff claimed the real reason was race discrimination based on his drug arrests, and not on the fact he lied on his job application.  The Texas trial court granted the school district’s summary judgment motion, dismissing the case, and Rogers appealed the ruling to the Fifth Circuit.

In holding that the trial court was correct in dismissing the case, the Fifth Circuit rejected Rogers’ claim that the School District maintains a policy of “excluding from consideration for employment all persons who have been convicted of a felony.”While the Fifth Circuit noted that under the school district’s actual policy, a felony conviction would be an adverse factor in an application, it is  “not an automatic bar to employment.” In addition, the record shows that the School District follows procedures that require the opportunity for an in-person meeting with any applicant to discuss the applicant’s criminal history. The record also shows that the School District recently hired several employees who had felony and misdemeanor convictions.  The Court discounted Rogers’ comparator of a white school district employee who failed to disclose on a job application a misdemeanor charge of marihuana possession thirty years earlier.

While not discussed in detail in the Fifth Circuit’s Opinion, it appears the school district’s policy was in line with the recently updated EEOC guidelines, which put the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.  Under the EEOC’s guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity.  In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought. 

The case highlights the need for employers to have such screening guidelines in place, proper documentation to support any employment decision based on a criminal history, and not to have any blanket-ban on employing individual with a criminal history.

Thursday, June 9, 2016

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings


Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.
Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.
Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.
Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.
In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.

Sunday, June 5, 2016


The Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Massachusetts hospital, alleging it discriminated against an employee on the basis of religion when it fired her for not complying with a facemask requirement after she declined a flu shot for religious reasons.  EEOC v. Baystate Med. Ctr., Inc. raises unique issues of what constitutes a reasonable accommodation to religious practices under Title VII of the Civil Rights Act of 1964 (“Title VII)”, as well as the scope of what is an undue hardship for employers, especially in the context of a health care provider.

In the federal lawsuit filed on June 2, 2016, the EEOC alleges that Baystate Medical Center fired administrative employee Stephanie Clarke after she sought a religious accommodation from the hospital’s mandatory employee immunization policy.  The hospital had an accommodation policy for employees who refused flu shots for religious reasons, which required such employees to wear a surgical facemask while at work.  The hospital suspended Clark without pay after she failed to wear the mask consistently, complaining she was not able to adequately communicate as part of her job while wearing the mask, which covered her nose and mouth.  She was told that she could not return to work until she either received an immunization or wore the mask at all times.  When Clark declined either option on the basis of a religious objection, the hospital treated her response as a job resignation.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

What raises the not-so-clear issues in this lawsuit is that Clark was not a healthcare worker, but instead an administrative talent acquisition consultant, who, while she worked at the hospital, had no direct contact with patients.  In public statements, the hospital has asserted that its policy of requiring employee immunizations or alternatively, for objecting employee to wear a facemask, is a reasonable measure to ensure patient safety.  While it is anticipated the EEOC will argue that Clark’s lack of patient contact renders the hospital’s actions unreasonable, it is as likely that the hospital could argue that because of the infectious nature of the flu, a non-healthcare worker present in the hospital could infect other employees who ultimately would have contact with patients, including those with weakened immune systems.  
An issue that also is likely to arise is whether wearing a facemask is actually an effective reasonable accommodation for purposes of patient safety.  The federal Centers for Disease Control have noted that it is unclear how well masks work to prevent transmission of the flu, or to what extent masks actually block or filter viruses from the air.  However, some experts note that they do offer some level of protection.  As such, the case also will place before the federal court the issue of whether a healthcare facility should be given deference in determining policies for patient safety, and whether having to modify such policies constitutes an undue hardship under Title VII.
Whether Clark’s objection to flu shots is a sincerely held religious practice is unlikely to become an issue in the case.  Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice.  In the EEOC lawsuit, it infers that Clark’s objection is based on her personal interpretation of the Bible. 

However, as previously noted in The Employee with the Dragon Tattoo, despite such judicial deference, on occasion a court will find that an employee’s claimed religious practice simply does not pass the smell test.  In Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.), the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” was not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours.