Out of work? Out of luck. EEOC hold meeting on use of employment status as screening tool

As I reported yesterday, the EEOC held its public meeting on the use of the exclusion of unemployed persons from applicant pools, a practice which it calls "emerging." As I expected, the EEOC is using this meeting to explore whether the use of employment status has a disparate impact on certain racial and ethnic minorities, such as African-Americans, Hispanics, and Native Americans.

According to the testimony of Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, "any practice which disadvantages currently unemployed workers relative to similar employed workers will likely have a disproportionate negative impact on people of color." The Commission also heard testimony from Colorado School of Law Profession Helen Norton, who considered various defenses employers could raise under the anti-discrimination laws to a claim of disparate impact. Professor Norton considered possible claims of job-relatedness and business necessity, such as current employment as a signal of job performance, current employment as a proxy for relevant experience, and as a tool to reduce the number of applications received. With little explanation, she rejected each possible defense.

The EEOC did take testimony from two advocates for employers, James Urban, an attorney with Jones Day, and Fernan Cepero, Vice President for Human Resources The YMCA of Greater Rochester and representative of the Society for Human Resource Management. Mr. Urban relied on his experience to cast doubt on the legitimacy of this issue as a real problem:

At end, under the widespread practice that I have seen employers follow, the simple fact that the applicant is or was unemployed does not operate to disqualify the applicant. The reason the employer may decline to hire the applicant will be the underlying reason the applicant became unemployed, and typically it is job-related. In sum, it is my experience and belief that there is not a widespread practice among employers to disqualify applicants on the basis of unemployment. I submit to you that the anecdotal examples contained in a media reports over the past year or so regarding such circumstances are, when viewed in the broad scope, isolated incidents.

Mr. Cepero elaborated further, challenging that the blanket exclusion of the unemployed is not a good HR practice, and runs contrary to the best interest of companies that simply look to fill jobs with the best people available:

Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed. Our members recognize that any type of blanket exclusion raises concerns under Title VII. What’s more exclusionary policies are poor business practices because they prevent organizations from accessing some of the best available knowledge, skills and abilities in a given labor force.

This public meeting was fascinating. The EEOC is looking for systemic discrimination in new and unique places. Just because something might be bad business, however, does not mean it is discriminatory. Nevertheless, employers who use blanket screening tools such as employment status should be aware that the EEOC may be watching. Employers would be wise to document the job-relatedness and business necessity for all screening tools to be prepared if the EEOC appears on your doorstep.

For more information about yesterday's meeting, the EEOC has published the bios and written testimony of each of its presenters.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC to examine the treatment of unemployed job seekers

Later this morning, the EEOC will hold a public meeting to examine employers’ practices of excluding currently unemployed persons from applicant pools. Presumably, the EEOC is considering whether using current unemployment status as an applicant screening tool has a disparate impact based on race.

As a management-side attorney, my natural inclination is to write this story off as the EEOC looking for another way to hamstring the ability of companies to use their best judgment in making personnel decisions. Then, I considered the following data, provided by the Center for Economic and Policy Research:

If the unemployment rate for blacks is nearly double that for whites, and Hispanics nearly 50% higher, can one argue in good faith that a disparate impact does not exist? I am not a statistician, but the impact of this data looks significant to me. Is the real question, then, not whether unemployment status has a disparate impact, but whether using current employment status is job-related for the position in question and consistent with business necessity? I can envision lots of legitimate uses for employment status as a screening factor for lots of types of jobs.

I am very curious to the read the speakers’ comments from today’s EEOC meeting to understand their thoughts on the legitimacy of using this criterion as a screening factor. I am sure I will have more to share tomorrow after digesting the notes from today’s EEOC meeting.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

New York Times on workplace smoking bans

Last week, the New York Times reported on a growing trend in the medical profession: hospitals and other health care providers that refuse to hire smokers:

More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. The policies reflect a frustration that softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers have not been powerful-enough incentives to quit.

The Cleveland Clinic, for example, will not hire any smokers. Its website also offers a good example of a nonsmoking hiring policy [pdf]. It also has banned the sale of any non-diet sodas anywhere on its campus. It has no problem, though, selling McDonalds, doughnuts, and hubcap sized cookies (which are delicious) in its cafeteria, so explain that logic to me.

For her part, the Evil HR Lady believes that these policies make for bad human resources:

Companies should focus on offering incentives for quitting. Smokers should have to pay higher health insurance premiums. But, if they ban people who smoke entirely, they are missing out on some great people, who made a big mistake at 13.

As for me, I’m ambivalent as to whether it is good policy or bad policy to screen out smokers from your hiring pool. I’m against these policies for another reason—they may constitute unlawful disability discrimination. As I wrote more than a year ago:

[T]he “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.... Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

So, readers, I turn the floor over to you. A poll in Crains New York is running 54% to 46% against smoker discrimination. Does your workplace have an anti-smoking policy? Are you for them or against them, and why?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A special circle of hell is reserved for lawyers that don’t extend professional courtesies

I write this post to vent, not to indict. I therefore withhold the names of the guilty.

For those that do not follow me on twitter, I’ve been dealing with an ill child for the past few days. What started as a routine endoscopy turned into an extended stay at the Cleveland Clinic after he developed a hematoma of the small bowel as a rare, but possible, side effect of the biopsy. After the scariest four days of my and my wife’s lives, he appears to be on the mend, although we have another couple of weeks before he is fully healed and home. From the bottom of my heart, I thank everyone for the well wishes these past days.

I was supposed to be in court this morning on a show cause hearing in what has been a very contentious case. On Friday, I left messages for all three opposing lawyers to explain that because of a family medical emergency I could not make the hearing, and to ask for their consent to a continuance. No matter how hard-fought the case, I would never dream that any attorney could refuse such a request under these circumstances. None of them even had the common courtesy to return my call.

I’ve long believed that Dante saved a special circle of hell for lawyers that do not extend common professional courtesies. Last Friday’s experience confirmed this suspicion.

WIRTW #164 (the you give love a bad name edition)

In honor of Valentine’s Day, Vault.com published the results of its annual office romance survey. The highlights:

• 59% have participated in an office romance
• 11% think office romances are never acceptable
• 20% think any office romance is acceptable
• 34% think employees of different levels should not engage in office romances
• 26% have dated a subordinate, while 18% have dated a superior
• 33% have had a tryst in the office, while only 4% admit to having been caught in the act (those poor 4%)

For more on the risks and dangers of office romances, I recommend Employers: Think Your Competition is Tough? Watch Out for the Valentine’s Day Card (from Daniel Schwartz’s Connecticut Employment Law Blog) and Do You Love Love Contracts? (from Manpower Employment Blawg).

Here’s the rest of what I read this week:

Discrimination

• Some Practical Facts About the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA) – from Employment Essentials

• What to do when a disabled employee requests an accommodation at work – from The Employer Handbook Blog

• 500,000 reasons to worry about retaliation claims – from Jay Shepherd’s Gruntled Employees

• Gay Man Fired For Complaining Of Harassment Can Bring Retaliation Claim – from Atlanta Employment Lawyer Blog

• Can They Ask That? Your Rights In Job Applications – from Screw You Guys, I’m Going Home

• Stupid Manager Tricks: Pregnancy Discrimination – from HR Cafe

• Using prospective employee’s credit reports in hiring – from Employment Law Bits

• Sexual Harassment Training: A Must-Do for Employers – from CPEhr

• Failure To Hire Was Not Racially Discriminatory Where Employer Had Established Policy Against Applicants With Theft Convictions – from California Public Agency Labor & Employment Blog

• Family Responsibilities Discrimination Quiz – from George’s Employment Blawg

Social Media & Workplace Technology

• NLRB Regional Director Discusses “Facebook Firing” Case With Morning Show – from Labor Relations Today

• The NLRB-Facebook Firing Case: Four Things Employers Need To Know – from TLNT

• Influence in Social Media: How to Find the Top Bloggers – from Social Media Today

• Egypt, Twitter and your Employment Screening Program – from employeescreenIQ Blog

• Your Employees Think They Are Smarter Than You – from The HR Capitalist, Kris Dunn

• Facebook user had standing to challenge subpoena seeking his profile information – from Evan Brown’s Internet Cases

• Nothing Says “Bad Faith” Like Throwing a Laptop off a Building – from Bow Tie Law’s Blog

• Are electronic gadgets promoting or undercutting work-life balance? – from David Yamada’s Minding the Workplace

Labor Law

• New NLRB Website – from Workplace Prof Blog

• NLRB Majority Announces New Theory of Employer Liability: the “Preemptive Firing” – from Labor Relations Counsel

• NLRB Actions to be Reviewed by Congressional Committee – from EFCA & Labor Law Reform Blog

• At will and the NLRB: Filling a void? – from Michigan Employment Law Connection

• NLRB Upholds Practice of “Bannering” – from Washington Labor & Employment Wire

HR & Employee Relations

• Holding Back Your Star’s Hair While They Puke: HR Lessons from The Social Network – from Fistful of Talent

• The Do’s and Don’ts of Employee Handbooks – from World of Work

• Arguing Is Pointless – from Harvard Business Review

• Wield the axe wisely – from Work Matters

• Workplace Violence Is Not Part of the Job - A Nursing Phenomenon – from Workplace Fairness

• Employee Performance Evaluations: The Do’s and Dont’s – from Minnesota Labor & Employment Law Blog

Competition & Trade Secrets

• Putting the Computer Fraud and Abuse Act to Work for Employers – from Molly DiBianca’s Delaware Employment Law Blog

• District Court Holds That Computer Forensic Investigation Costs Satisfy “Loss” Requirement of Computer Fraud and Abuse Act – from Trading Secret

• Enforce that Non-Compete! – from Rob Radcliff’s Smooth Transitions

• Why You Need a Non-Compete, Non-Solicitation, or Confidentiality Agreement for EVERY Key Employee – from Bottom Line Business Insights

• Trade Secret Theft: The China Syndrome – from Fair Competition Law

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The asshole defense to harassment claims

Fortunately or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable. In the absence of an employee’s membership in a protected class, participation in a protected activity, or a clear public policy that prohibits the employer’s conduct, an employee cannot maintain a claim for harassment merely because his employment has become unpleasant or undesirable.

In other words, as an Ohio appellate court recently pointed out in Kimmel v. Lowe’s Inc. (quoted above), there is no law against general incivility in the workplace. Merely because the law does not provide a remedy against someone for being an asshole does not mean that you, as an employer, need to tolerate it. That decision, though, is an organizational one, not a legal one.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Would you rather?

Career Overview’s list of the 25 most difficult jobs in the world caught my eye. So, to you, my readers, I pose the following question: Would you rather clean sewers in Calcutta (#6), or work as a porn theater janitor (#24)?

I love being an attorney. Even though it’s hard work, I am grateful everyday that I am able to earn a living this way.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.