Archive for the ‘Discrimination Issues’ Category

Respect the Personal-Professional Wall Between You and Your Employees

Thursday, May 30th, 2013,, employement screeningEmployers often speak of their staff members as “family.” It’s great when supervisors and workers can hang out together, bond over a softball game or grab a beer after work. But in the age of social media, it’s far too easy to know far too much about your employees’ personal lives. And getting too involved can lead to real problems.

You cannot, by law, discriminate against employees who belong to a protected class or category. Examples are gender, race, age, sexual orientation, religion or disability. You can’t even ask questions about these issues in interviews. Why? Because there is a possibility of discrimination if decisions are made based on these characteristics.

It’s important to create a workplace that is free from any inkling of discrimination. And the less you know about employees’ personal lives, the easier that becomes. For example, you might have an employee who shows up every day on time, works hard, achieves his goals and has a great attitude. But if you’re friends with him on Facebook, you may also find out that his political views are 180 degrees from your own—even if he’s never brought up politics at work. And that could affect how you treat him.

Here are some other personal things you don’t need to know about your employees:

  • How they spend their free time. Some people run for fun. Others sit in bars. It’s not your concern one way or the other.
  • What church they belong to—or don’t. If an employee speaks about his religious beliefs or tries to proselytize to other workers, have a talk and insist that the behavior stop.
  • How they spend their money. If you know she buys expensive shoes or likes good wine, you might decide Sara doesn’t need that raise she has earned.
  • Their sexual orientation. It’s none of your business. Period.
  • Whether they have physical or mental illnesses. Some illness will carry over into the workplace. But knowing that an employee is in therapy, taking medication or dealing with a chronic disease can affect your objectivity in evaluating her performance. Remember though, that employees with disabilities who need work station adjustments are entitled to them.

In a time when everyone announces what they’re eating for breakfast on the Internet, it takes more effort to respect the employer/employee professional relationship. But this is also a litigious time, and knowing less about your employees could keep you out of legal trouble. Keep the professional wall between you and your employees intact.

When Terminating Employees, Stick to Your Story

Friday, December 21st, 2012

employee background check, employee prescreeningSometimes employment decisions don’t go well. Seemingly good hires turn out badly, because of performance issues, attendance problems, inability to follow the rules, or other terminable offenses. Even the best employee screening process cannot tell you whether a candidate will succeed at the job.

When it’s time to terminate, many employers struggle with doing it right. In this age of litigation, fear of discrimination or wrongful termination lawsuits have kept many sub-performing employees on the payroll.

Employers have the right to terminate employees, but it’s best to avoid any possibility of a lawsuit. Doing so takes some organization, preparation and follow-up. And it means sticking to your reasons for termination throughout the process. Changing your story at any point is confusing to the employee, and can lead him or her to believe you are not telling the truth, which can open the door to a lawsuit.

Experts will tell you that the key to a solid termination case is to prepare yourself ahead of time. Document the employee’s performance and your actions, including counseling and recommendations for improvement. During the termination conversation, keep to the topic at hand. Don’t allow the employee to steer it to an airing of grievances or defense of his or her record. Have a witness in the room. And when informing the employee of the reasons for termination, keep it simple. Don’t try to over-explain, and don’t offer additional evidence. Simply state the reason, say the relationship didn’t work out and offer next steps.

Legal disclaimer:
The contents of this article are intended for general information purposes only, and should not be relied upon as a substitute for obtaining professional legal advice applicable to your situation.

Pepsi Pays Big Fine to Settle Criminal Background Check Charges

Tuesday, February 7th, 2012

employee screening, employee background check, criminal background checksPepsi Beverages agreed to a settlement on federal charges of race discrimination, brought by the Equal Employment Opportunity Commission (EEOC). Under the settlement, Pepsi will pay $3.1 million for using criminal background checks to screen out job applicants.

Under the company’s policy, applicants with arrest records—even if they were not convicted—were not eligible for hire. In addition, the company denied employment to other applicants with minor convictions. The policy led to Pepsi unfairly excluding over 300 black applicants from employment.

According to the EEOC, the policy discriminated against minorities, because they have a disproportionate rate of arrest and convictions than whites. Further, using arrest and conviction records to deny employment can be illegal if it is not relevant to the job, the EEOC said. For example, an old DUI conviction would not be relevant to a retail sales job, while a conviction for theft could be.

Pepsi officials said the company’s employee background check policy is neutral, and the EEOC found no evidence of intentional discrimination. After the issue was first brought to Pepsi’s attention in 2006, the company collaborated with the EEOC to revise its background check process and improve its diversity and inclusivity.

Since the federal charges were brought against Pepsi Beverages, the company has changed its criminal background check policy. It also plans to make jobs available to those applicants who were denied unemployment under the previous policy.

Employment lawyers who monitor EEOC activity say there has been an increase over the past year in charges over background checks, and that the commission has taken a very aggressive enforcement stand on the use of criminal background and criminal history in hiring.

Pepsi Beverages is PepsiCo’s operation unit in the U.S., Canada and Mexico. Under the settlement, the company will report regularly to the EEOC on its hiring practices and provide anti discrimination training to hiring personnel and management.

The EEOC is expected to issue more specific guidelines for employers, following a hearing on criminal background checks last summer.

Are Criminal Background Questions on Employment Applications Going Away?

Tuesday, January 31st, 2012

pre employment screening, employee background checkCivil rights organizations, politicians and others are calling for the Equal Employment Opportunity Commission (EEOC) to prohibit employers from asking job seekers if they have a criminal record on employment applications.

Last summer, the EEOC held a hearing regarding a possible ban on criminal background checks for screening employees, but has not yet released its opinion. Some states are already eliminating the criminal record question for state job applicants.

Why are supporters calling for the “box ban?” Some say that it prevents applicants from getting a fair chance at a job, because they don’t have an opportunity to explain the circumstances if they don’t ever get an interview. They say that too often, employers automatically eliminate anyone with a criminal history during the application process.

Others say that in most cases, the conviction is not related or relevant to the position being filled. Still others say that the disproportionate number of people of color with criminal records means this is essentially a civil rights issue. Advocates say they are behind the ban in an effort to reduce discrimination and unfair barriers against people with felony and misdemeanor convictions—particularly those that occurred years or decades ago.

Some cities have enacted ordinances prohibiting employers from asking anything about criminal backgrounds until after an applicant’s first interview. In Seattle, Philadelphia, Chicago, San Francisco and Boston, criminal background checks are permitted after an interview, but requiring an applicant to reveal his or her criminal record on a job application is not.

Advocates say that employment is the way to a better life for individuals with criminal records, and that it levels the playing field by allowing everyone to be judged on qualifications and merit. But many employers are understandably hesitant to take that chance.

We’ll keep you posted on these possible changes, so you can make the best hiring decisions for your business.

Have you hired an employee with a criminal conviction? How did it work out?

Landmark Supreme Court Ruling Finds in Favor of Wal-Mart

Thursday, June 30th, 2011

employee screening criminaldata.comThe Supreme Court on Monday issued a decision with wide-ranging implications. In Wal-Mart Stores Inc. v. Betty Dukes et al., the largest class-action suit in U.S. history, the court found that there was not significant proof that the company operated under a general policy of discrimination.

The plaintiffs in the case claimed that Wal-Mart managers favored men when it came to pay and promotions. In 2001, six current and former employees filed a class action lawsuit. In 2004, a national class was certified that included all women who worked at Wal-Mart stores since December 26, 1998,.

The court’s ruling on Monday also found that there was not enough “glue holding together the alleged reasons” for millions of employment decisions. Therefore, there was no “class” that would justify the class-action suit filed by more than 1 million female employees.

Further, the court indicated that Wal-Mart’s announced policy forbids sex discrimination and the company has penalties for denials of equal opportunity. The respondents’ only evidence of general discrimination, the ruling said, was a sociologist’s analysis that said Wal-Mart’s corporate culture made it vulnerable to gender bias. The sociologist could not estimate what percentage of Wal-Mart’s employment decisions might be determined by “stereotypical thinking.”

The attorney for the plaintiffs indicated that thousands of individual claims could still be filed later in the year. They may try to formulate one or more smaller classes, where there is “substantial evidence of a policy of discrimination.”

The Wal-Mart decision sets forth new parameters for the way class action suits will be structured and litigated. In effect, each member of the class must be able to tell their story on the stand and it must be the same story for everyone else.

Wal-Mart and its supporters, including DuPont and Intel, said that such class actions can subject them to billion-dollar judgments and must be limited by rules governing who can join together to form a class.

The National Women’s Law Center said the decision was “devastating” and female workers everywhere will now face a “far steeper road to challenge and correct pay and other forms of discrimination in the workplace.”

Are Dress Codes Outdated?

Tuesday, June 9th, 2009

dress-code on employee screening blogOur previous post covered diversity in the workplace, including being sensitive to employees who display their religious beliefs through clothing or hairstyle. We advised employers to avoid making an issue of any such break of dress code as long as job performance was not affected.

That leads us to today’s topic: are dress codes still being established in businesses? A look around a scattering of companies reveals a variety of policies that are currently in force:

Retail: Most major chains enforce dress codes. Target, Walmart, Macy’s, and Costco all require their employees to either dress in business wear or uniforms. Target’s red top and khaki bottom outfits are familiar to frequent shoppers. Costco’s guidelines forbid facial piercings (even after Costco was sued for the policy on religious grounds). And what would Walmart be without blue vests everywhere?

Smaller, locally-owned establishments are usually a reflection of their clientele and surroundings. Some stores allow employees to wear whatever they want—which can be dangerous! The definition of “too casual” depends largely on your industry and where you’re located. West coasters tend to be more casual, and we’ve seen plenty of t-shirts, jeans, and flip-flops worn by sales clerks. If that’s a normal look in your area, your customers probably won’t think it’s a big deal—especially if they’re dressed the same way. In bigger cities and on the east coast, people tend to dress up more, and retail clerks’ dress reflects it.

Restaurants: Most restaurants have established dress codes, at the very least for health and safety reasons. Customers don’t usually care for a guy in a tank top taking their dinner order (as happened to a friend of ours recently!). Upscale restaurants see dressed-up diners who expect professional appearances for host and wait staff.

Health Workers: Scrubs are the norm in all areas of health care, from walk-in clinics to emergency rooms. Nurses, doctors, and dental assistants are usually decked out in scrubs for their entire work day—even television’s Dr. Oz wears scrubs for every appearance on Oprah’s show.

Professionals: Most law offices and finance-related businesses still require corporate dress for all staff, from CEO to reception. You don’t expect to see a board room full of people dressed in sweat pants and tennis shoes. Nor would most folks feel comfortable if their lawyer represented them in court while wearing a t-shirt and shorts! Suits, dress shirts and ties, skirts, and hose are still considered proper attire in the legal and financial fields.

Dress codes can encourage professional conduct and increase productivity for your employees. But beware: if you do not currently have a dress code in your company, your employees may resist it—so be sure to communicate your reasons clearly, and to enforce it consistently. When deciding what the dress code will entail, ask the following questions to avoid legal trouble:

  • Is the policy fair for employees of both genders and all ages?
  • Does it infringe on any employee’s religious beliefs?
  • Does it infringe on a cultural aspect of a specific race?
  • Would a disability prevent an employee from complying?
  • Can employees fulfill their job duties when complying?
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Diversity Sensitivity for Employers

Tuesday, June 2nd, 2009


diversity on employee screening blogChances are your company has become more diverse over the years, based on the changing demographics of the US population. Being sensitive to cultural differences between you and your employees is not only important, but it could keep you out of legal trouble, as well. 

With charges of religious discrimination in the workplace on the rise, here are some general guidelines you might consider. These examples are based on recent courtroom cases, and should not be construed as legal advice.

Be careful about dress and personal appearance codes. In the District of Columbia, a federal court ruled that firefighters cannot be forced to be clean shaven. The case began around concerns that respirators won’t fit the bearded firefighters properly. Those who wear beards for religious reasons were ruled to be exempt from the policy. 

Consider your company’s dress code, and how it applies to workers who wear head coverings or other religious dress. Courts would unlikely to find favor with an employer shown to be discriminating against employees for facial hair or religious dress. If an employee’s appearance does not affect their work, it’s best to leave the issue alone.

Be aware of what makes for a hostile work environment, and require your employees to be respectful to all co-workers. One worker sued her company after management ignored her requests for fair treatment. Her co-workers had repeatedly yelled at her when they could not understand her English. The court ruled against the employer on grounds of a hostile workplace after it found she demonstrated enough knowledge of English to do her job and ruled the co-workers were harassing the complainant.

Be flexible about days off. Don’t assume that all your employees share your faith or that everyone celebrates the same holidays. Respect your workers who request days off for religious holidays—even if you are unfamiliar with them. Communicate with all of your employees to create solutions that will work for both the business and the staff. Swapping days off or instituting floating holidays for everyone are two possibilities to consider.

Speaking of holidays, how does an employer celebrate holidays without offending employees? Whether your staff celebrates Hanukkah, Christmas, Kwanzaa, Ramadan—or nothing at all—must be taken into consideration. You will add to your employees’ job satisfaction and loyalty when you demonstrate your respect of their religious beliefs. 

At holiday time, instead of giving Christmas cards or bonuses, avoid singling out one religion by renaming  them “year end bonuses.” Instead of decorating a Christmas tree, honor diverse customs by allowing employees to bring in personal holiday mementoes, or to decorate a space together. Those individuals who do not wish to participate should never be forced to or treated any differently.  

If you’re an employer, read up on cultural diversity, or take a class if offered in your local community college. All companies can provide education to help managers learn about and model sensitivity to their workers’ religious beliefs and cultural differences. Remember, it is up to the employer to ensure that all employees are respectful of their co-workers, and to stop any harassing or insensitive actions when they occur. 


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Acceptable Interview Questions to Ask a Disabled Person Under ADA Regulations

Tuesday, December 9th, 2008

An employer is not allowed to ask questions related to disability or use medical examinations until after a job offer is made. Application and interview questions should be focused on non-medical job qualifications, employment history, and education. It is also acceptable to ask if the applicant can meet the job’s essential duties and requirements.  An employer is allowed to ask if a person with a disability will need a reasonable accommodation to do the job in question.

Questions You May Not Ask

You may ask how much time an applicant took off in a previous job (but not the reasons), why they left a previous job, and any past discipline. You cannot ask about their impairment or how they became disabled, about their use of medication, or about any prior worker compensation history.

Post-Job Offer Questions and Examinations Under ADA Regulations

Tuesday, December 2nd, 2008

After an employer has made an offer to a person with a disability, questions relating to the disability may be asked. It is also acceptable to conduct medical examinations, as long as you do the same for everybody in the same job category. If it becomes clear that a person with a disability cannot do the essential job functions, or would pose a significant threat of harm to the safety or health of himself or others, you may withdraw a job offer. Be sure to consider if there are any reasonable accommodation that would enable the disabled person to perform the duties of the job.

Reasonable Accommodation for Disabled Employees

Monday, November 24th, 2008

The ADA requires employers with 15 or more employees to make ‘reasonable accommodation‘ so that individuals with disabilities have equal employment opportunities. Such accommodations might include a sign language interpreter for a deaf person during an interview, regularly scheduled breaks for a diabetic to eat and monitor blood sugar, or someone to read bulletin board posts to a deaf person. An employer must provide such reasonable accommodation if a person with a disability needs one in order to apply, perform, or enjoy benefits of a job equal to those offered to other employees. Employers are not required to provide an accommodation that would pose an undue hardship, such as a significant expense based on your resources and normal business operation. Most accommodations are low cost, and can often be offset with tax credits.