"Hey, Jackie, can we talk?" The EEOC's Enforcement Guidance on criminal background information

Posted by Robin E. Shea on April 26, 2012

Dear Jackie,

How ya doin'? I'm not too bad . . . just keepin' my nose to the grindstone at work and enjoyin' the spring weather, and not a whole lot else . . . same old, same old.

Listen, hon. I know it's been a while since we've been in touch, but when I saw your new "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq." -- no offense, but that is not a catchy title!! -- I just had to sit right down and write yourself a letter.

Can we talk?Joan_Rivers as Orpheus in Mardi Gras parade.jpg

Don't get me wrong, hon -- I'm cool with not usually considering arrest records in making employment decisions. I get all that adverse impact stuff, and I'm opposed to it, just like you. And I agree with you that we shouldn't be winking at the white guy's crime while getting all hot and bothered over the black or Hispanic guy who does the same thing.

But, dang, girl! I'm reading this thing, nodding my head, saying, "Uh-huh, uh-huh, yep, good point, amen, uh-huh," and then - BAM!

I hate to say it, but some of your numbers seem a little . . . dishonest. Like, OK. You say that "African Americans and Hispanics are arrested in numbers disproportionate to their population." I get that. But then you say (and I'm skipping a little -- I'm trying to keep this letter from turning into War and Peace) "African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites."

Huh? Why talk only about drug offenses? What about murder, armed robbery, grand theft auto, obstruction of justice, using presidential campaign contributions to pay off your mistress so she won't squeal to the media about being pregnant and sink your campaign (allegedly, allegedly!), and breaking into the Democratic National Committee headquarters to commit a third-rate burglary?

John_Edwards,_official_Senate_photo_portrait.jpgG._Gordon_Liddy_c_1964.jpgMartha_Stewart.jpg

 

 

 

 

 

And why compare arrests (etc.) for drug offenses with the rate of drug use? Sweetie, I've been around the block a few times. Trust me, there are a lot of drug offenses besides "use." Like dealing. Or running a drug house. Or being in a high-speed chase with the cops because you have a stash in your car. Or stealing to buy your drugs. (How do I know all this? I was young once myself. Kidding!) They even kill each other over drug deals gone bad. And you didn't tell us whether the African Americans and Hispanics who were convicted were just a bunch of lovable stoner dudes who were too herbed out to keep from getting caught, or whether they were also doing some of this serious stuff. Don't we need to know that to be able to compare and to see whether discrimination is going on?

Honey, a girl's reputation is her most important asset. Don't lose it.

OK. Move on dot org. I've gotta ask ya -- have you ever had to hire somebody? 'Cause I gotta say, this thing sure doesn't read like it.

All this nice talk about how an employer should take into account how serious the crime is, and how it's relevant to the particular job applied for, and when the perp stops being at risk for being a recidivist, individualized assessments, reviewing sociological studies, validation under the Uniform Guidelines on Employee Selection Procedures, "less discriminatory 'alternative employment practices'" even if the criminal information is "job related and consistent with business necessity" . . . and on and on and on, blah, blah, blah, blah, blah, zzzzzzzzz --

Sweetie, I knowAnn_Landers.jpg your heart's in the right place, but an employer can't go through all that malarkey with everybody who applies for a job! You know what Ann Landers used to say, may she rest in peace: Wake up and smell the coffee, Buster!  Employers have to use the information they can get to predict who they think will do a good job. They do the best they can. Sometimes criminal information can help. It seems like you're trying to make it so hard for them that they won't use it any more. You wouldn't do that, would you?  :-(

Then you start talking about other laws, and I was with you when you were talking about how you're still allowed to comply with a requirement of federal law. So it's ok to reject somebody if they pled guilty to wearing a shoe with a bomb in it on an airplane and can't get a federal security clearance that they need for their job at the nuclear power plant. Glad to hear it.

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But you lost me again when you started talking about state and local laws, and how you can't use them as a defense. I get that Title VII would "preempt" state or local laws that allow employment discrimination or even require it, like that old law in Virginia that wouldn't let people of different races get married except that it wasn't an employment law. But do you really think Title VII preempts state laws that simply require criminal background checks for certain jobs and disqualify everyone -- of any race -- who's been convicted of certain crimes?

Sweetie, I feel like you're overreaching here. If you got slapped down by a court, it would break my heart. You know I'm serious.

You're saying that an employer has to disobey its state or local laws on criminal background information unless it can prove that the state or local requirement is "job-related and consistent with business necessity" . . . ?

Don't answer that -- I don't think I want to know.

Time's getting away from me, and I have to run some errands. Eric Meyer has five good "takeaways," and Phil Miles has links.

And, don't tell me, I already know Daniel Schwartz and Jon Hyman and even my own colleague David Phippen think you could have done worse, and I'm sure they are right. But I always thought you held yourself to a higher standard than that, young lady. Do you want to do just the bare minimum, or are you a cut above?

*Whew.* OK, now I feel better. You know I get on your case only because I love ya.  :-)

So, how is everything else at the EEOC? We really should go out for drinks soon. If you're up for it, give me a buzz. (Hahaha -- get it?)

Robin

xxxooo

P.S. Photos from Wikimedia Commons (public domain).

What employers with international operations can learn from Secret Service sex scandal

Posted by Robin E. Shea on April 20, 2012

"Ai, ai . . . ai, ai . . . have you ever danced in the tropics,

In that lazy, hazy, like

Kind of crazy, like

South American way?

"Ai, ai . . . ai, ai . . . have you ever kissed in the moonlight,

in the grand and glorious,

gay notorious*

South American way?"

*Those really are the words to the song.

Down South America Way, © Warner/Chappell Music, Inc., EMI Music Publishing.

Oh, those wild and crazy Secret Service agents. It's bad enough that they patronized ladies of the evening while they were on the presidential security detail to Colombia.

Gives a whole new meaning to the term "secret service," doesn't it?

But it's even worse that one of them allegedly promised a lovely young señorita named "Dania (last name unknown)" that he'd pay her $800 USD . . . but then, after she'd acted in reasonable reliance on his promise to her detriment, told her he was drunk when he promised her the $800 and offered her $30 instead.

The stupidity of THAT, my friends (if true), is astounding. And as we all know, the dispute about sums dueCarmen_Miranda_in_The_Gang's_All_Here_trailer_cropped.jpg and owing caused a row in the hotel lobby, which caused law enforcement authorities to be summoned, and next thing you know we have 11 Secret Service guys being placed out of service. One has already "retired," and one has been fired (and reportedly plans to sue). Another chose to resign. The other eight are still being investigated.

Employers with international operations tell me that this kind of thing is a real problem in two ways. First, we have the "Secret Service syndrome" - normally sober-minded Americans go to another country that is less . . . Puritanical* than the U.S.A. and, next thing you know, they're wearing lampshades on their heads and engaging in other shenanigans that I am too delicate to recount here and that they'd never dream of engaging in here at home.

Secret_Service_agents_stand_guard.jpg

*DISCLAIMER: Use of the adjective "Puritanical" is not intended as an endorsement of sexual harassment or other abuse, prostitution, or any other segment of the sex industry.

Second is the flip side -- I'll call it the "Dominique Strauss-Kahn syndrome." Foreign nationals from less . . . Puritanical countries come to the United States and think all the behavior that is acceptable (or at least winked at) at home is A-OK here, too -- like going to prostitutes, or kissing or pinching attractive female co-workers as a "compliment," or succumbing to the irresistable charms of the hotel maid. (Actually, Strauss-Kahn is under investigation in Europe, now, too.)

American Gothic.Grant_DeVolson_Wood_-_American_Gothic.jpgDid you know that in many countries, sexual harassment is not against the law, or is a new concept? It's a fact!

So if you have employees who do a lot of international travel as part of their jobs, or you have foreign nationals coming to work here, make sure they understand the risks of behaving badly, whether it's in the U.S. or somewhere else. Your harassment training should be tailored to your workforce, and if you're "international," you should make sure that your foreign employees understand how things work here (which they may honestly not know unless you tell them -- in my experience, folks from other countries are shocked to find out how . . . Puritanical we are here) and, for everybody, the risks of bad behavior to their families and their jobs.

I'd sure hate to be one of those 11 Secret Service agents having to come home and face the Missus. Not to mention the President of the United States. Ugh.

Barack_Obama_20110501.jpgPhotos and art from Wikimedia Commons (public domain).

Can an employer insist on regular attendance without violating the ADA? Maybe.

Posted by Robin E. Shea on April 13, 2012

Woody Allen once said, "80 percent of success is showing up." So true, so true!

The U.S. Court of Appeals for the Ninth Circuit* came out recently withWoody_Allen_-_statue.jpg a great decision on when "showing up" -- also known as "attendance" -- is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act.

*The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case (let's call her "Miss Ratched") was a nurse in a neonatal intensive care unit at a hospital in Oregon. As you probably know, the NICU is the part of the hospital where they take care of little babies -- and I really do mean little -- usually severely premature, and often having other serious health conditions. (And I'm not talking "FMLA-serious," which includes hangnails, the sniffles, and ennui. I mean the real thing.)

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Anyway, Miss Ratched had fibromyalgia and missed work a lot. The hospital -- we'll call it St. Patience for obvious reasons -- tried to accommodate her for years but eventually gave up. They finally told her she would have to move to another department where her attendance wasn't as critical. She said no. In my favorite part of the case, the hospital scheduled a meeting with her to discuss her attendance, and she was absent from the meeting. LOL! Eventually St. Patience fired her for bad attendance.

Pretty brave for an employer in the Ninth Circuit. Maybe our hospital's pseudonym should have been "St. George the Dragonslayer."

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Miss Ratched sued St. Patience under the ADA, claiming that she should have been allowed to stay in the NICU and "opt out" of the attendance policy.

And the Ninth Circuit sided with the hospital! Man bites dog!

(OK, sorry, Ninth Circuit. I'm done teasing you now.) The decision actually provides an excellent discussion about when absence from the workplace can be "accommodated" and when it cannot.

Regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it. But it's not an essential function in every case. Some jobs can be performed pretty well at home or on flexible schedules -- for example, writing a blog, and other jobs that entail a lot of computer or "paper" work.

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If so, and if telecommuting would help the employee perform the essential functions of the job, then most courts would say that the employer has to consider allowing it as a reasonable accommodation.

But there are a lot of other jobs that really can't be performed at home, duh:

*Where the employee must work "as part of a team."  

*Where the job requires "face time" with clients or co-workers.

*Where the employee must work with items or equipment that are on-site.

The Ninth Circuit said that Miss Ratched's job fell into all three of these categories. The NICU staff had to work as a team. Face time with supervisors, other staff, the babies, and the parents was an important part of the job, too. And, of course, NICUs are full of sophisticated equipment with beepers and flashing lights and such. In addition, the Ninth Circuit found, the nurse's job was not "fungible" -- working as an NICU nurse required training and expertise that was not readily available, even among the nursing population. That meant that it was often hard to find qualified substitutes for Miss Ratched when she called in sick, affecting the quality of the little ones' care. Not to mention the cohesiveness of the "team."

The court also found that St. Patience had gone to extraordinary lengths to work things out with Miss Ratched before it terminated her employment. And, even though the hospital already had a fairly generous time-off policy, the court said, that didn't mean it had to grant even more time off to Miss Ratched.

So, when you have an employee who wants time off or to be able to work from home as a reasonable accommodation, you could do a lot worse than starting with a look at this case. Even if you live in Illinois or New Hampshire or Alabama. Eighty percent of success really is showing up.

(Photos from Wikimedia Commons, public domain.)

Religious employers, the ministerial exception, and pregnant women

Posted by Robin E. Shea on April 04, 2012

With Easter and Passover almost upon us, what better topic than a new case on the ministerial exception to Title VII?

Easter eggs.jpgA federal judge in Ohio has recently refused to dismiss* a lawsuit brought by a former teacher at a Catholic school who alleged that she was let go because of her pregnancy. (The teacher was not married, and she alleged that she became pregnant through artificial insemination.)

*At this very preliminary stage of the litigation, the judge had to accept as true everything that was alleged in the plaintiff's lawsuit. So it's possible that the ultimate outcome will be different, and we have not heard the employer's side of the story.

The case is interesting because it is one of the first "ministerial exception" cases (if not the first) to be decided since the U.S. Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which I blogged about a while back. (Scroll down to "Hail, hail, Freedonia!")

According to the lawsuit, the plaintiff, Ms. Dias, was a "technology coordinator" for two Catholic schools in the Archdiocese of Cincinnati. Ms. Dias was not Catholic. As technology coordinator, she was responsible for teaching computer to the kids and overseeing the IT systems at the two schools. She did not teach religion and, indeed, was not allowed to teach religion because she wasn't Catholic.

(By the way, have I mentioned lately that she wasn't Catholic? I wasn't sure you got that point.)

Anyway, on a fine Friday in October, Ms. Dias notified one of her school principals that she was five and a half months pregnant. The principal congratulated her and said she did not think the pregnancy would "be a problem." Notwithstanding this rosy prediction, later that same day, the same principal called Ms. Dias back and told her that she would probably be terminated because she was "pregnant and unmarried." The next Monday, Ms. Dias told the principal that she had become pregnant through artificial insemination, not extramarital sexual relations. Then she disclosed her pregnancy to the other school principal, who told Ms. Dias right off the bat that her pregnancy "was going to be a problem" because Ms. Dias wasn't married.

After the schools consulted with Human Resources for the Archdiocese, Ms. Dias was told thatSeder_Plate.jpg she was being terminated for "failure to comply and act consistently in accordance with the stated philosophy and teachings of the Roman Catholic Church."

At this point, there are a couple of things you may need to know:

*You may have heard that the Catholic Church has some strict rules. Among other things, the Church considers any sexual relations outside of marriage to be a sin. That would include premarital sex, as well as a lot of other things that I shouldn't get into on a family blog.

*You may or may not have heard that the Catholic Church also considers artificial insemination to be a sin. It does.

OK, you needed to know those things before we moved on. So, Ms. Dias filed suit claiming pregnancy discrimination, and the Archdiocese said her suit should be dismissed because of the ministerial exception. And, as you already know, the judge refused to dismiss the lawsuit.

The judge said that the ministerial exception didn't apply in this case because the plaintiff was clearly not a "minister." Although she did work for two Catholic schools, she did not teach religion and wasn't even allowed to do so because she wasn't -- well, you know, and she did not have the title of "minister," and she did not, apparently, perform any "spiritual" function whatsoever.

This made her situation different from that of the Lutheran teacher in Hosanna-Tabor, who was a "called" minister, had religious education, taught religion classes, and led her kids in prayers and devotions.

Well, ok, said the Archdiocese, but Ms. Dias signed a contract agreeing that she would abide by Catholic teaching, so by her own admission she has breached her contract, giving us airtight grounds to terminate her employment. Well, maybe, the judge said, but how would a non-Catholic be expected to know that artificial insemination is a sin? (Heck, your honor, I'll go you one better -- I'd bet that most Catholics don't know that artificial insemination is a sin.) Because the plaintiff is entitled to all benefits of the doubt at this early stage of the lawsuit, the judge said, I have to find in favor of Ms. Dias.

Well, ok, said the Archdiocese, but Ms. Dias is also supposed to be a good example for the students in our schools, and she got pregnant by a means that our Church teaches is a sin. That's setting a bad example. Well, maybe, the judge said, but we have some legal precedents saying that artificial insemination (as opposed to premarital sex) isn't so bad for a church-affiliated school*. 

*The case cited by the judge concerned a school affiliated with the Church of Christ, which (as far as I know) does not have centrally defined religious dogma and probably no specific doctrine on artificial insemination. So this decision may not be very applicable to a case involving the Catholic Church, which clearly does have a hierarchy, centralized dogma, and a specific teaching prohibiting artificial insemination. (If any readers are members of the Church of Christ, your comments on this point would be welcome.)

We also have some precedents saying a religious employer can terminate pregnant women for being pregnant only if they're really sanctioning the -- cough, cough -- activity that resulted in the pregnancy, the judge continued (my paraphrase, obviously!). Put another way, the cases say that it's not ok for a religious employer to simply focus all of its moral energies on female employees who get pregnant out of wedlock. The religious employer has to also fire female and male employees who do the stuff that sometimes causes women to get pregnant out of wedlock. Otherwise, it's pregnancy discrimination. No fair to fire the pregnant unmarried women for being "immoral" while letting the men carry on like . . . bunny rabbits. (Not that the Archdiocese was necessarily doing that, but the judge said it was too early in the lawsuit to tell.)

So, Ms. Dias's case will go forward for now. As far as the Archdiocese is concerned, this shouldn't be the end of the world because it will have plenty of opportunity to develop the evidence and move for summary judgment later. But the case has a good lesson for religious employers: For the ministerial exception to apply, it helps if your employee's job involves something "ministerial."

(Photos from Wikimedia Commons, public domain.)