Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

The EEOC released fiscal year 2009 statistics this week: although the number of claims was down 2% from 2008's record level, 2009 had the second highest number of complaints ever filed with the EEOC.  According to the New York Times, disability claims rose by 10% to 21,451.  This is most likely due to the passage of the ADA Amendments Act of 2008, which expanded the coverage of the ADA.  The most frequently filed claims were for race, sex and retaliation.  National origin claims rose by about 5%, while religious claims rose by less than 1%.  Stuart Ishimaru, acting chair of the EEOC, was quoted by the New York Times as saying that equal employment opportunity "remains elusive for far too many workers", while urging employers to end discrimination at work. 

Practice pointer.  I anticipate that EEOC claims will remain relatively constant in 2010, and may even increase, based on several factors, including the state of the economy, additional funding for the EEOC, and increased awareness within the workforce of changes in the law and the ability to file claims with the EEOC.

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Last week, the Miami Herald published a story written by Diane Stafford entitled "Ready to hire? Don't ask wrong questions".  The story, referring to an article in The HR Specialist newsletter, listed a number of questions that may be asked during an interview that may be viewed as discriminatory.  Some of the questions listed are:

     Are you married?  Divorced?

     Do you have children? Do you plan to start a family?

     Do you rent or own your home?

     What church do you attend?

     Do you have a disability or illness?

As Ms. Stafford points out, "Some of these questions might seem laughable.  Some might seem logically designed to figure out how responsible and worthy the applicant might be.  But the threat of lawsuits prompts employers to tread carefully in personal probing." 

All of the above brings to light the use of the internet to conduct background investigations on potential employees (and even current employees).  Sources for internet background checks include search engines such as Google, social networking sites such as Facebook and Myspace, high school or college web sites, and even corporate web sites where the applicant worked prior to the application for a new job.  Sites that can be checked  also include news sources, such as newspaper or television websites, public records, such as assets, lawsuits, bankruptcy and home ownership, and the websites of religious institutions.

While many HR professionals will not ask questions such as those set out above, many will not hesitate to use the internet to conduct background checks.  They do so without realizing that they may get answers to questions that they otherwise could not or should not ask in the interview process.  One may be able to determine sex, race, age, family status, religious affiliation and even disabilities by performing internet research. 

Practice pointer.  When conducting internet background checks for potential employees, HR professionals need to be careful where they look and what they do with the information they discover if the information can form the basis for a claim of discrimination if the applicant is not hired.  Using the internet to conduct background checks may lead to claims of discrimination when an applicant is not hired.

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Congress recently approved funding the EEOC with $23 million to help reduce the backlog of cases currently pending with the agency, some for as long as 3 years.  According to Ethisphere, staff levels at the EEOC have dropped by approximately 25% over the last several years. Last year, the EEOC saw a 35% increase in backlogged cases.  There are currently tens of thousands of backlogged cases pending with the EEOC.  This is consistent with my November 11, 2009 blog entry indicating that the acting director of the EEOC reported at the annual meeting of the Labor and Employment section of the American Bar Association that they were hiring 250 new employees. 

Practice pointer.  As the new employees come on board for the EEOC, expect both an increase in the disposition of backlogged cases, as well as more aggressive enforcement of the various laws that the EEOC is responsible for. 

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Congress's latest employment law becomes effective on Saturday, November 21, 2009.  The Genetic Information Nondiscrimination Act (GINA) is designed to ban the misuse of genetic testing in the workplace.  GINA prohibits employers from requesting genetic testing or considering someone's genetic background in hiring, firing, disciplining or promoting.  Insurance companies will also be prohibited from requiring genetic testing, and cannot use genetic history, such as a history of heart disease or cancer to deny coverage or set the amount of premiums or deductibles.  Genetic information includes not only the individual's medical history, but also that of his/her family.  The law applies to health insurers, but not life insurers.  GINA applies to any employer with 15 or more employees.  The EEOC has released the revised "Equal Employment Opportunity is the Law" poster, which is mandatory for all covered employers. All federal posters need to be replaced to include GINA.

Practice pointer.  GINA is Congress's most recent employment law to take effect.  Like most other laws, the EEOC's interpretation may be different, and much more expansive, than the courts will ultimately interpret GINA to be.  For now, it is important for employers who are covered to replace their EEOC posters, and review and revise all forms/applications, etc. to make sure that the paperwork is in compliance with GINA.   The New York Times published an article addressing GINA on Monday, November 16 discussing the law and it's impact on the workplace. 

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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Recently, one of my partners, David Mellon, presented a talk entitled "Background Checks & Title VII: Discriination Lurking in the Shadows".  When a criminal background check is provided to an employer by a consumer reporting agency (CRA), the Fair Credit Reporting Act (FCRA), 15 U.S.C.Section 1681 et seq is applicable.  The FCRA creates obligations for both the CRA preparing criminal background reports and for employers using them.    A CRA may furnish a consumer report to an employer for employment purposes.  A CRA may not report arrests or other adverse information (other than convictions of crimes) that are more than 7 years old.  Before an employer (other than in the trucking industry) obtains a consumer report of criminal records from a CRA for purposes of employment decisions, the employer must do certain things, inlcuding providing the applicant with "clear and conspicuous disclosure" that the report may be obtainted for employment purposes, ensure that the disclosure is written in a document that consists only of the disclosure, and receive the applicant's written authorization to obtain the report. 

Recently, Law.com  reported that Bank of America Corp and Manpower Inc. were accused of discriminatory hiring practices when Manpower Inc. distributed fliers stating that qualified candidates "must be able to pass a background check and have no felonies or misdemeanors".  Although there is no federal law that specifically imposes any limitations on an employers' decision predicated on criminal records (although 4 states do, Hawaii, New York, Pennsylvania and Wisconsin), the EEOC has found that employer policies that reject job applicants with criminal records, even if they are neutral on their face, have a racially disparate impact.  In 1985, the EEOC issued a policy setting forth the business necessity standard for the consideration of convictions: 

     1.  The nature and gravity of the offesne.

      2. The time that has passed since the conviction and/or completion of the sentence.

      3.  The nature of the job.

The EEOC Policy Guidelines on Arrests reaffirms the 3 progned business necessity test set forth in their Policy Guidelines on Convictions.  The arrest guidelines go on to state that with respect to consideration of arrests, "a blanket exclusion of people with arrest records will almost never withstand scrutiny".

Practice Pointer.  In the event a company uses a CRA to conduct background investigations, that include criminal history, the company must ensure that all applicable rules and regulations are followed by the CRA, and any history of arrests or convictions be used in compliance with EEOC policies. 

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Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA).  Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA.  However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury.  The trial court granted summary judgment in favor of Greif.  On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification.  The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts.  The charge could have been verified at any time while the charge was pending, but Butler failed to do so.  It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."

Practice Pointers.  From an employees' perspective, it is imperative that the EEOC charge be verified.  Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have.  Employers need to remember that failure to  verify the charge can be remedied so long as the charge process is ongoing. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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Danny Morton, the Sheriff of Blount County, Alabama, has agreed to resign effective January 15, 2009 due to allegations of sexual misconduct.   According to the Birmingham News, a female deputy sheriff, assigned to the drug task force, filed an EEOC charge on April 11, 2008 alleging that she was forced to drink alcohol while on duty, was fondled, kissed and sexually assualted.  At the time, Sheriff Morton denied the allegations of the complaint. 

A criminal investigation began, and a special proscecutor was appointed by the Attorney General's office.  An agreement was reached allowing Sheriff Morton to resign on January 15, 2009, and no criminal charges will be filed against him.  The article from the Birmingham News, dated December 16, 2008, is availble to read here.  There is no indication on how the EEOC charge is being handled at this time.

Practice Pointers.

1.  All employers must recognize that sexual harassment and other prohibited conduct can be engaged in at all levels: from the top, like a sheriff, to the bottom, of each organization.

2.  Employers should have a mechanism to report harassment, sexual or otherwise, to at least 2 people, in case their supervisor or CEO is the one accused of the wrongful conduct.

3.  Allegations of sexual harassment may give rise to a criminal investigaion and possibly charges for assault, rape, kidnapping or other crimes.

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