The Fourth Circuit yesterday affirmed a lower court decision that the EEOC could not go forward in a case challenging credit and criminal background checks.
The Equal Employment Opportunity Commission, charged with investigating workplace discrimination, sometimes takes a case to court itself. Most discrimination charges are left to the individual to pursue in court.
In this case, EEOC v. Freeman, the EEOC decided to follow up on one person’s complaint that the background check constituted illegal race discrimination. The theory goes that because minority applicants are more likely to have an arrest or criminal record, or poorer credit scores, the reliance on these checks can lead to racial discrimination. These theories have supported challenges to written tests or the requirement of a high school diploma, which tended to exclude applicants from a lower socioeconomic status. Courts therefore required employers to show that the tests or diploma requirement bear a reasonable relationship to the job duties.
Credit background checks must be related to job necessities under Maryland law. This law provides a floor of job-relatedness. The tendency of practices to favor white candidates, even though it is unintentional, can still support a race discrimination suit.
The EEOC had to show that the use of these background checks had a disproportionate effect on minority candidates. It hired a statistics expert who produced a terribly inadequate report. The expert’s report had errors, such as miscoding the relevant data, and double counting. The biggest problem was his “cherry-picking” data, all older data at that. The court had no trouble upholding the lower court’s decision tossing his work as unreliable. Without the statistics, the EEOC could not show the link between the practice and discrimination.
The concurring opinion pointed out the saddest aspect of this case: the EEOC’s reliance on an expert who had been criticized by other courts for his unusable reports, and its arguments that the court should let in the error-laden conclusions anyway.
A new settlement in an EEOC case brings to mind the intersection between old racial prejudices, subtle remainders, and the perceived preference of customers. The EEOC sued McCormick & Schmick, which occupies two nice waterfront spotsin Baltimore’s inner harbor. The case started in 2008 (yes) but involved a large number of claimants. The suit alleged that the restaurant chain persistently routed African American employees and applicants to back of the restaurant jobs.
The suit alleges that the restaurants ads were nearly devoid of minorities, and so were the dining areas. The settlement sets up a fund of $1.3 million for claimants who were denied jobs as wait staff, bussing staff, bartenders, or hosts at the restaurants. It also requires revamping of procedures, monitoring and review of the hiring numbers.
The case never went to trial, but with that level of settlement I have to assume that the EEOC had a fair amount of good evidence that it kept the customer experience fairly minority-free. At some level of a pattern, it is fair to infer that intentional discrimination is going on. Customer preference, whether real or perceived, does not provide an excuse under the anti-discrimination law. These kinds of practices serve to perpetuate a kind of mental segregation. When an upscale restaurant subconsciously conveys the impression that “this is a white place,” we drift backwards.
This year, the 50th anniversary of the passage of the Civil Rights Act of 1964, we should celebrate integration in all areas of our lives.
In 2008, Congress amended the Americans with Disabilities Act to fix Supreme Court and other cases that had narrowed the door through which disabled employees could fit their claims. Since then, the cases have gradually reflected the broadening of the definition of disability. Cases that arose under the old law were still judged under the old, restrictive standards. There can’t be many more of those left to litigate, after six years.
But sometimes changing the minds of courts used to applying the restrictive viewpoint is a slow process. A recent Fourth Circuit case underlines this tendency, Summers v. Altarum Institute. An employee was seriously injured while commuting home from work. His injuries required surgery and therapy; he was not expected to walk normally for seven months. Soon after his injury, though, he suggested to his employer that he ease back into work with some remote work, some part-time work, and eventually he would return. The employer told him to concentrate on recovery, and then, six weeks after his injury, fired him.
The trial court dismissed the case, reasoning that his temporary condition did not meet the definition of disability under the law. The Fourth Circuit reversed, stating definitively that a temporary disability qualifies under the amended law. The employer argued that he was not substantially limited in the ability to walk, as he alleged, because he could have used a wheelchair. Stunning reasoning: I used to believe that under the former version of the ADA only wheelchair users could count on qualifying as disabled. For our circuit, anyway, this case sweeps away such notions, and stands behind the law and the regulations expanding on the definitions.
Massachusetts senator Elizabeth Warren introduced a new bill this week called the Equal Employment for All Act, designed to end the common practice of using credit reports to screen out applicants for jobs. The proposed law
The law would broadly forbid using or procuring a credit report, regardless of the applicant’s consent. As with many decisions in modern life, consent is a black and white proposition: consent to this lengthy user agreement, or your phone won’t work; consent to these disclosures or we won’t consider your job application. The use of credit reports to discriminate against someone whose unemployment led to financial issues or uninsured medical bills, for example, leads to more income inequality.
Senator Warren’s press release explains the need for the law:
“A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual’s character or abilities,” Senator Warren said. “Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness — let people compete on the merits, not on whether they already have enough money to pay all their bills.”
The main exception is if the person needs or has a national security clearance. The other is “unless otherwise required by law.”
The Maryland credit report ban is much narrower than the proposed federal statute, and permits an employer to obtain a credit report if the candidate would work with finances, for example, would work for a bank, credit union, investment advisor, or have access to trade secrets. I reported on this law when it passed in 2011.
If the federal law passes, an employee or applicant could rely on his or her federal rights under the Equal Credit Opportunity Act and sue in federal court if a credit report led to a rejection of a job or a promotion.
Some for-profit companies claim that they, because of their owners’ religious beliefs, should be exempt from the requirement that their health insurance plans provide contraception. The Supreme Court has decided to dive into these claims, one brought by Hobby Lobby, an arts and crafts retailer, and one by a Mennonite cabinetmaker with only about 500 employees. The New York Times article following the announcement identifies this fight as a cultural one, modernity vs. tradition.
Although the immediate point of these cases continue the challenges to Obamacare, the more basic principle shines a light on how to accommodate religious beliefs in the workplace. Employers are required to accommodate religious beliefs if it is possible without undue disruption. Must employees accommodate an employer’s religious freedom? The employers here cite the Religious Freedom Restoration Act, requiring that a person’s freedom to worship “shall not substantially burden a person’s religious exercise” unless the burden can be justified. The employers contend that they should not have to pay for a benefit plan that enables (but of course does not require) their employees to obtain cheaper birth control.
Sebelius v. Hobby Lobby Stores, Inc. is the lead case. The question presented to the Supreme Court is framed as follows:
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. , provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
By combining this case with the Conestoga Wood Specialties Corp. case, the Supreme Court is expected also to address the issue of the extent of First Amendment rights to religious freedom enjoyed by corporations, as well as the statutory issue presented by the Religious Freedom Restoration Act. If corporations are persons for the purpose of the First Amendment freedom to worship clause, then does this law violate their rights?
If the contraception mandate is found to violate a corporate employer’s right to worship, the implications for other workplace issues can be profound. An employer’s sincerely held views could easily conflict with a worker’s right to resist a boss’s proselytizing on his (or its) own religion; with a family’s decision to allow a woman to work after having a baby; or with an employee’s choice of activities outside the office. To me, it seems inconsistent with pursuing a profitable enterprise to claim that a law applicable to most businesses in the country can’t be applied to a business whose owners oppose birth control. The owners seem sincere, however, in objecting to a law they see as constricting their choices of benefits to offer. Unless the Court ends up resolving the case on narrow procedural grounds, as sometimes happens, this group of cases will have far reaching significance.
Legislation to outlaw employment discrimination against people on the basis of their sexual orientation has been proposed many times since 1994. This year may see its passage, though. With more states approving gay marriage, and prominent politicians on both sides of the aisle approving of the notion of equal rights for gay citizens, the time may have come to add it to the national civil rights protections.
Earlier this month, when ten Republicans in the Senate voted with all Democrats to pass the Employment Non-Discrimination Act, a barrier crumbled. A Republican amendment to protect religious groups from complying with the law put the effort over the top.
Maryland legislation protects employees from being discriminated against on the basis of their sexual orientation; we have yet to add gender identification. Maryland legalized gay marriage by voter referendum. While this effort will probably top out at 30 or so states, the momentum is strong now, and at least in parts of the country, should
In light of the Supreme Court’s recent opinion in U.S. v. Windsor erjecting the Defense of Marriage Act, together with shifting public attitudes towards same-sex marriage and LGBT rights, many insiders believe the time is ripe for ENDA.
October 1 marked the effective date of a number of laws passed in the Maryland General Assembly’s 2013 session. The end of capital punishment and the ban on hand-held cell phone usage while driving have gotten a lot of attention, but there are some other new laws of interest in the employment arena.
The Pregnancy Fairness Act, discussed here earlier, takes effect on October 1. In brief, employers must consider requested accommodations for pregnant workers, and in many cases must grant them. My condolences to the pregnant women who were unable to avail themselves of these protections during the summer; I heard from several of them. But now, employers with at least 15 employees must make accommodations if they are available, and must consider a pregnant worker’s request for a flexible schedule to attend doctor’s appointments, for example, or a temporary ease on lifting requirements.
The unpaid wage lien process also is available. Discussed here before, the new law permits a worker who has been denied wages (often the last paycheck) to use a new process to get a lien on property of the employer. The procedural burden is then on the employer to dispute the claim. This procedure will be helpful for employees whose unpaid wages are not high enough to warrant hiring a lawyer. Indirectly, it will benefit employers who pay their workers, by impairing the illegitimate profits earned by employers who steal from their employees.
Many applicants for employment with the state cannot have their criminal records rule them out prior to at least the time they are granted an interview. Obviously, some types of backgrounds can be considered for some jobs. Our financial overseers do not have to hire convicted embezzlers, for example. But people with records will no longer find that the door to state jobs is locked.
Lastly, a new law prohibits employers of tipped employees from charging them for the costs of customers who run out on their checks. This has been a frequent practice imposed on wait staff. A bar or restaurant facing serious issues with thieving customers must find a better way of preventing freebie meals.
This week the New York Times ran an article about the difficulties older workers face in getting a new job after a layoff. Bias against older workers often involves assumptions that an older worker has inadequate technology skills and will refuse to be supervised by a younger boss. The article pointed out the added burden posed by the Supreme Court’s having made it more difficult to prove age discrimination. Unless Congress revises the law to establish a proof scheme similar to that of race and sex discrimination, the New York Times reports that no lawyers take age discrimination cases.
That is an exaggeration. But the Gross decision, which requires an employee to prove that “but for” the age discrimination he would not have suffered the employment action (such as being fired or demoted), does raise the bar. The Supreme Court justices, remember, have no mandatory retirement age and cannot be removed except by impeachment. They may not be able to relate to an employee laid off in the private sector who has to reinvent himself.
Congress does have a bill before it to make the proof standard equivalent to what one has to prove in other kinds of discrimination cases: that the person’s (race, national origin, etc.) was a motivating factor in the decision. Many people have difficulty meeting this burden, given the fact that supervisors are usually trained not to reveal such bias, but this standard fits the ideal that a person’s gender, religion or disability status should not be a part of the decision to hire or fire.
The Equal Employment Opportunity Commission filed suit against Freeman, a company
It claimed that Freeman’s policy of conducting background checks into criminal convictions and credit histories resulted in exclusion of more minorities than whites from the applicant pool. The EEOC has been pursuing this practice, which results in a “disparate impact” against minority groups, whose members are more likely to have had interactions with the criminal justice system and suffered credit problems during the recession. Studies have shown that bias has also led to harsher treatment, meaning more convictions instead of probation, for minority arrestees.
Given this backdrop, the EEOC’s goal is ambitious and laudable. The employer side of it, though, is reasonable. Depending on the job, an employer would want to exclude someone proven to have a violent past, or a history of theft. No employer should be required to hire a convicted embezzler as its bookkeeper, and may risk public safety, not to mention lawsuits, if it hires a convicted rapist to do service calls at customers’ homes.
The EEOC pursued in Maryland federal court a privately held company with offices around the country. The EEOC alleged that Freeman’s use of credit checks and criminal background checks resulted in the illegal exclusion of a disproportionate number of minority candidates. Federal district judge Titus threw out the case last week. There were two main problems with the EEOC’s case. The worst was that its statistical expert delivered a report with egregious errors. The judge seemed to question whether many were purposeful, but it also appeared that on the whole the statistical analysis was sloppy. The conclusion of the opinion included this summary: “The story of the present action has been that of a theory in search of facts to support it.”
The second problem seemed to be that this particular company did not use criminal convictions and credit histories as a blunt tool to weed out a portion of the population. Instead, the company looked at credit for certain classes of jobs involving the handling of money. It asked about convictions on the application form, but limited the use of conviction records to the last seven years, and, perhaps most importantly, did not complete any such background checks until after the applicant had a job offer.
The EEOC is likely to pursue similar cases, but will have to draw a clearer line between the background check policies and unreasonable exclusions of minority candidates from the applicant pool.
An interesting new study shows the subtle but ingrained bias against older people. As reported in this week’s New York Times, a psychological experiment showed participants videos of a man identified as Max, a white man wearing a checked shirt. The actors playing Max had two scripts for the video, differing only in one respect, whether they intended to be generous with their wealth. The people who saw Max’s video rated him on a positive to negative scale. Here’s the age discrimination twist: Some of the viewers saw a 25-year old Max, some saw a 45-year old Max, and some saw a 75-year old Max. The 75 year old who would not be inclined to share his riches with his relatives got high negative marks; no other age groups saw that difference.
As this article points out, there are two main difficulties in proving an age bias case. One is that people are not young or old (as opposed to male or female). We age over time, some of us look older or younger than our chronological years, and the age of our peers may be important in whether we are regarded as old in a given context. Experiments designed to show differences in treatment depending on race or gender often show stark differences; age attitudes are more subtle.
The second issue is the Supreme Court’s limitation on age discrimination bias cases four years ago, which raised the bar of proof that age was the “determining” factor causing the termination, demotion or other adverse action.
Nevertheless, age discrimination affects employment decisions, whether the decisionmaker is acting intentionally or does not perceive his or her own bias. As the article states,
“There is little doubt that such discrimination exists. When an older man or woman is laid off, it typically takes two to six months longer to find a new job than it takes younger workers, according to the Bureau of Labor Statistics. And the new job is likely to pay considerably less.”
Congress may have to fix the Supreme Court’s Gross decision. But rooting out ageism in our perceptions is going to take more effort. Fortunately, psychological and other research funded by the Alfred P. Sloan Foundation is ongoing, and perhaps some strategies for eliminating bias will emerge.