by Steve Jones

Q What are my obligations to employees who are in the military, are called to serve, and then seek to return to their civilian jobs? What if an employee will be deployed for more than a year?

A The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the employment of military servicemembers. USERRA, which is a federal law and therefore applies in all states, is intended to ensure that people who serve or have served in the armed forces, reserves, National Guard, or other uniformed services (1) are not disadvantaged in their civilian careers because of their service, (2) are promptly reemployed in their civilian jobs upon their return from military duty, and (3) are not discriminated against in employment based on past, present, or future military service. You must be aware of your obligations under USERRA before you hire military servicemembers, during their employment, and while they are away from their jobs because of service-related duties.

Application of the law

First, you may not deny someone initial employment because of past, present, or future military service. You can defend your company against a USERRA claim by presenting evidence that you would have taken the same action if the job applicant didn’t have military service obligations. Detailed documentation, including comprehensive interview notes and in-depth explanations of your reasons for not hiring prospective employees, will help your defense. read more…

by Mark Schickman

Let’s turn the clock back 50 years to the days before Title VII of the Civil Rights Act of 1964. Sex discrimination was a constant, and sexual harassment was so prevalent that it wasn’t yet a term of art. The notion that a woman had the right to a workplace free from sexist comments or unequal treatment was nothing short of bizarre. Work life as portrayed on Mad Men was pretty much the norm.

Do you know how gender discrimination found its way into Title VII? The bill was originally designed to cover discrimination based on race and national origin. Opponents allowed gender to be added as a protected class, thinking it would kill the bill. Much to their surprise, Title VII passed―sexual harassment prohibitions and all. read more…

by Kylie Crawford TenBrook

Several years ago, I attended a celebration for one of my brothers, who had just become an Eagle Scout. Several relatives were there, including some distant relatives I hadn’t seen in years. One of those distant relatives, who is close to my age, approached me, and the following exchange took place. (The comments in parentheses are my thoughts as the conversation progressed. Please take my fresh-out-of-law- school cockiness with a grain of salt―I have been severely humbled since then.)

Relative: So, Kylie, what are you doing these days?

read more…

by Steven Collis

In its first class action lawsuit challenging an employer’s use of criminal records, the Equal Employment Opportunity Commission (EEOC) ended up dropping its case against PeopleMark and getting socked with $750,000 in sanctions. Recently, the EEOC suffered another stinging loss when a federal court dismissed its discrimination case against Kaplan Higher Education Corporation (which was discussed in a previous blog post, “EEOC’s use of ‘race raters’ against Kaplan University gets failing grade”) based on an unsound analysis by the commission’s expert witness. With the same expert providing statistical evidence in another case, could the agency strike out in a third background check class action lawsuit?

Over the past few years, the EEOC has aggressively challenged the use of credit reports and criminal history checks in hiring decisions, alleging that use of the information results in a discriminatory impact on candidates in protected groups. In 2012, the commission successfully negotiated a $3.13 million prelawsuit settlement of a race discrimination charge against Pepsi in which the soda giant’s criminal background check policy was called into question for allegedly discriminating against African Americans. However, the agency has been less successful pursuing similar cases in court, mainly because of its struggle to proffer reliable evidence of discriminatory impact. Despite the EEOC’s mixed results, the recent settlements and case filings indicate that the use of credit and criminal history checks in the hiring process is a hot topic. read more…

by Judith E. Kramer

On January 28, a federal court ruled in favor of Kaplan Higher Learning Education Corp. and Kaplan University in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The EEOC had alleged that Kaplan’s use of credit history reports in making hiring decisions violated certain provisions of Title VII of the Civil Rights Act of 1964 because the practice has a disparate impact on black applicants.

Background

The defendant in this case was a group of educational institutions. As the court noted, educational institutions operate in a highly regulated industry. The U.S. Department of Education (DOE) provides financial aid to many students enrolled at Kaplan University and Kaplan Higher Learning Education and requires its participants to have in place quality controls that limit access to student and parent information. read more…

by Mark I. Schickman

People often complain that California employment law is bizarre. My colleagues around the country call our judges “fruits and nuts.” To the contrary, however, while our legislature is farther left than most states’ legislatures and our juries are more profligate than most, our appellate courts are relatively centrist. The award for the most bizarre supreme court employment decision of 2012 goes to Iowa and its dismissal of dental hygienist Melissa Nelson’s sex discrimination claim against her boss, James Knight, DDS. read more…

by Mark Schickman

Statistics from the Equal Employment Opportunity Commission show that charges of discrimination based on religion and national origin are the fastest growing categories in the past decade. Of course, that coincides with the aftermath of 9/11 and, rational or not, American anger and suspicions over Middle Eastern Arab communities. This shift in public mood creates a problem for HR professionals, whose job it is to ensure a workplace free from discrimination and harassment―a prejudice-free island in an ocean littered with group hatred. That’s no easy job, as United Parcel Service (UPS) was reminded recently. read more…

An “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC) indicates that employers should carefully weigh religious objections by pregnant employees, specifically in the context of employer-mandated vaccination policies.

Background

In February 2012, a healthcare provider wrote the EEOC requesting a formal interpretation of the application of Title VII of the Civil Rights Act of 1964, as amended, to healthcare workers’ requests for exemption from employer-mandated vaccinations. The healthcare provider specifically asked whether hospitals must accommodate their employees’ religious objections to mandatory vaccinations and whether an accommodation must be considered for a pregnant worker who refuses to take a vaccine. The EEOC didn’t issue any formal guidelines, but it did release an informal advisory letter. We want to ensure you are aware of the agency’s position on the matter. read more…

by Mark I. Schickman

Remembering that employment discrimination has been illegal for less than 50 years, workplace accommodation has come a long way.

The first accommodation laws protected people with cancer, back when cancer was feared to be contagious. The law was put to the test when it was applied to protect people infected with HIV/AIDS, and employers were reluctant to offer the protections guaranteed by law. But over the decades, those fears waned, it’s universally settled and recognized that the law prohibits discrimination against persons with disabilities, and the prejudice against cancer victims has virtually disappeared.

The law was tested again when it was expanded beyond prohibiting disability discrimination and mandated the provision of affirmative accommodations to qualified employees with disabilities. There was concern that job quality would suffer and that required accommodations would cost huge dollars. In practice, reasonable accommodations generally have gone smoothly, with most accommodations costing below $200 and good performance of essential job functions something that employers can still require under the law. read more…

By Marcia Akers

The rules of etiquette define those behaviors that are socially acceptable under particular circumstances. It is not a crime of legal consequence if these unwritten, but widely accepted, standards of proper behavior are broken, but anyone not adhering to them may be ridiculed or ostracized. The Disability Rights Movement popularized the expression “disability etiquette” which describes the guidelines for approaching and interacting with people who have disabilities.

People with disabilities are simply that….people. As it is with all people, those who have a disability have emotions, goals, friends, families, abilities, limitations. And, as it is with all people, those who have a disability deal with life as it presents itself in a way that is comfortable and accommodating so far as they are able and to the extent that our society will allow. read more…