The Employment Discrimination Project - The Lawyers' Committee for Civil Rights Under Law - News Feed

What You Need to Know About EEOC's New Guidance on Criminal Background Checks

Thu, 17 May 2012 00:00:00 -0500

On April 25, 2012, the EEOC, in a bipartisan 4-1 vote updated its 25 year old enforcement guidance on the use of criminal background checks in hiring. With aggressive enforcement, this guidance will help reverse a pattern in which old arrests and minor convictions can turn into life sentences of joblessness for many minority job-seekers.

The EEOC cited a large and increasing disparity in the percentage of minority workers who have criminal records compared to the percentage of white workers. The Commission noted that, if incarceration rates remain unchanged, about one in 17 white men are expected to serve time in prison during their lifetime; compared with one in six Hispanic men and one in three black men. A disproportionate number of those with criminal records come from low income communities of color. African Americans and Latinos are more likely to be arrested than whites, more likely to be charged once arrested, and more likely to be convicted and incarcerated when charged.

The following will highlight those parts of the Enforcement Guidance which are worthy of attention – some are new, some are justified by more compelling documentation and argument.

Arrest Records. The Guidance expressly states that an arrest record by itself may not be used by an employer to deny employment. Under certain circumstances, where the underlying conduct for which the person was arrested indicates that the person is not qualified for the specific job in question, the employer may deny the individual employment. For example, an applicant for a teaching job arrested for exposing himself may be denied the job.
No Lifetime Bans on Employing Persons With Criminal Convictions. Lifetime bans on hiring persons with criminal convictions violate the Guidance. Workers with criminal histories should not be excluded from the employer’s consideration unless the particular criminal record is job-related. If you are denied a job because the employer screens out all persons with criminal convictions or categories of criminal convictions, e.g. felonies, contact the Lawyers’ Committee via our online intake questionnaire.
Presumption of Disparate Impact. To challenge an employment practice that excludes applicants with a criminal record, the applicant must prove that the employer’s policy has a disparate impact on minorities. As a result of the disparity in arrest, conviction and incarceration rates of minorities, the Guidance directs EEOC staff, when investigating a charge of discrimination, to presume that the use of criminal history as a screen for employment will have a disparate impact on minorities. This presumption will not apply at the litigation stage. One of the biggest problems in filing lawsuits attacking bans on employing persons with criminal convictions has been the difficulty in obtaining employer applicant records that are needed to prove that the employer’s policy has a disparate impact. Many employers do not keep applications and many applications do not contain any identifying information. The statistics cited by the EEOC to support the presumption of disparate impact show such a stark disparity, particularly as to African American men, that there is now a much better chance that legal counsel for employees will be able to persuade courts to accept national or regional data as proof of disparate impact where the employer has not kept useful applicant data. In order for an employer to prove that its criminal history exclusion policy does not have a disparate impact on its own hiring of minority employees, the employer must develop and maintain application forms that include information on applicants’ characteristics, such as race, national origin, and gender.
Individualized Assessment. If a criminal background check has a disparate impact on minorities the Guidance provides a detailed process employers should go through in order to justify a particular criminal background screening policy as job related. The heart of this process is the need for employers to conduct an individualized assessment concerning whether the exclusion of an applicant is job related. This is a three step process:

I. The employer should analyze its criminal history exclusion in relation to the specific job and consider (1) the nature of the offense; (2) the length of time since the commission of the offense or the completion of the sentence; and (3) the nature of the job. The key question is whether “the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” (V-B-4) On this basis the employer may determine that persons with certain convictions within a specific length of time should be screened out of the applicant pool. The employer may not screen out all persons with a criminal conviction for life. The screen must be targeted to the offense, the duties of the particular job, and the length of time for which the individual remains a risk.

II. For those applicants or employees who are screened out due to their criminal record, the employer should inform them that they are being screened out and provide the individual with an opportunity to respond by correcting inaccurate records and/or providing an explanation of the circumstances of the conviction and evidence of rehabilitation before making a final decision.

III. The employer should then conduct an individualized assessment taking into account any explanation provided by the applicant and other factors that tend to reduce the risk presented by the applicant, in spite of the prior conviction. These factors may include age at time of conviction, length of time since conviction or incarceration, employment history, and education since the conviction or incarceration.

Employers Introducing a Restriction Against Criminal Convictions For the First Time. New or present employers who want to introduce for the first time a restriction against employing people with conviction records are prohibited from discharging an employee who has successfully worked for the company for many years just because that employee has an old conviction that the new employer wants to make a disqualification.
Federal Laws That Require a Criminal Background Check. The Guidance makes clear that any employer who must conduct a criminal background check in order to comply with a federal law will not violate Title VII. For instance, the federal government requires that contractors conduct criminal background checks on all employees who will be working on federal government projects that require a security clearance.
State and Local Laws That Require a Criminal Background Check. The guidance takes precedence over state or local laws that impose more stringent background check requirements. This means that if an employer conducts a background check pursuant to state law that imposes e.g. a lifetime ban on employing felons for the position in question, the employer may be in violation of Title VII and may not be protected from liability simply because it followed the state or local law.
Federal and State Statutes With a Cut-Off for Exclusion Where a state or federal statute determines that an employer may not refuse to hire persons whose conviction is more than a certain number of years old (cannot employ someone who has had a theft conviction in past 10 years), the statutory period is binding on the employer; in other words, the employer cannot exclude all applicants who have had theft convictions in the past 20 years just because they think it will be “less risky.”

EEOC Guidance Critical to Equitable Employment Opportunities for Racial Minorities

Wed, 09 May 2012 00:00:00 -0500

In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.

This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.

Significance of the Guidance

Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:

African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers.

Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.

The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers...

To read more about the function of the guidance and changes in employer practices, read the whole guest blog on the American Constitution Society's website.

Court Blocks Protections for Unemployed Americans and Exploited H-2B Guestworkers

Mon, 30 Apr 2012 00:00:00 -0500

EEOC Investigation Initiated at Request of Lawyers' Committee Leads to Major Lawsuits Attacking the Promotion Policies of the Jacksonville (FL) Fire and Rescue Department

Mon, 23 Apr 2012 00:00:00 -0500

On April 23, 2012, the Department of Justice filed suit against the City of Jacksonville alleging that its Fire and Rescue Department “JFRD”) has used and continues to use written examinations for promotion which disproportionately screen out Black candidates. See Department of Justice statement here. On April 30, 2012, the EEOC filed suit against the Jacksonville Association of Firefighters, Local 122, the sole collective bargaining representative for the firefighters, alleging that the union has advocated for and negotiated in favor of the unlawful promotion process used by the fire department. See EEOC statement here.

Following incidents in 2006 in which two African American firefighters were threatened with nooses, the Lawyers’ Committee was contacted by the Jacksonville Brotherhood of Firefighters (an organization representing the interests of minority firefighters) and the Jacksonville chapter of the NAACP to assist them in addressing perceived discrimination by the JFRD in hiring, promotion, and hostile work environment. A Charge of Discrimination on behalf of both these organizations was eventually filed.

During the course of its initial investigation in 2006-2007, the Lawyers’ Committee suggested that the EEOC also investigate the matter. In February 2008, Commissioner Stuart Ishimaru filed a Commissioner’s charge. The investigation by the EEOC of the Commissioner’s charge led to the DOJ and EEOC lawsuits. The Lawyers’ Committee’s Employment Discrimination Project continues to be involved in the promotion issues. Additionally, the city and the Lawyers’ Committee are involved in efforts to develop a nondiscriminatory hiring process.

The JFRD has a long history of racial discrimination, which resulted in a federal court approved consent decree mandating that JFRD significantly increase the number of African American firefighters through a specifically ordered recruitment and hiring plan. Until 1992 the department made significant efforts to hire Black firefighters. However, in 1992 the department ceased adhering to the consent decree. The percentage of black firefighters hired since 1992 has dropped precipitously and there have been disproportionately few promotions.

This case demonstrates the need for continued vigilance even after an employer has been successfully sued or has signed a consent decree. Following the spate of lawsuits against states and municipalities brought in the 1970’s and 80’s which led to significant increases in the employment of blacks, there is now reason to believe that black employment rates are decreasing in some sectors of public employment.

Director of Employment Discrimination Project Presents Testimony on Credit Checks to D.C. City Council

Thu, 10 Nov 2011 00:00:00 -0600

On November 9, 2011, the Lawyers’ Committee presented testimony at a hearing of the Committee on Public Services and Consumer Affairs of the District of Columbia City Council in support of the objective of a proposed ordinance restricting access of employers to consumer credit history information. Ray P. McClain, Director of the Employment Discrimination Project of the Lawyers’ Committee, urged the Council to strengthen the proposed ordinance by narrowing a proposed exemption for supervisory employees at financial institutions and by providing for enforcement of the ordinance through a right for a party whose rights under the ordinance are violated to bring an action against the offending parties, which could include the employer and, in certain instances, the provider of the credit history report.

The hearing, which was streamed live on the internet, is available at the Council website, http://www.dccouncil.washington.dc.us/granicus/archive/.

Ray’s oral testimony can be accessed here. A more extended statement of support by the Lawyers’ Committee can be found here.

Lawyers' Committee and Partners Call for TransUnion to Stop Promoting and Selling Employment Credit Reports

Tue, 11 Oct 2011 00:00:00 -0500

On Tuesday, October 11th, the Lawyers' Committee for Civil Rights Under Law joined with 24 other advocacy organizations in sending a letter calling for TransUnion to halt the sale and promotion of employment credit checks. The groups' action was prompted by TransUnion's efforts to lead the credit reporting industry in fighting state legislation that would restrict the ability of employers to check credit of job applicants.

With 60 percent of employers are currently utilizing credit checks in their hiring processes, the Lawyers' Committee firmly believes that such policies have a discriminatory impact on racial minorities. Barbara Arnwine, Executive Director of the Lawyers' Committee has said that "barriers [such as those imposed by employment credit checks] are a contributing factor to the drastic unemployment numbers we see for people of color... [and they] are often used as disguises for other kinds of racial bias."

As a whole, the 25 groups that are signatories to the letter sent to TransUnion contend that credit check policies in the employment context not only have a negative effect on racial minorities, but that they also harm women, recent immigrants, senior citizens, and people with disabilities. At a time when Americans need jobs more than ever, a poor credit history due to a layoff, divorce, or medical bill can unfairly keep otherwise qualified applicants out of employment.

To read the sign-on letter that the groups sent to TransUnion, please click here.

Lawyers' Committee Joins Other Civil Rights Organizations in Brief Asserting that Parochial School Teachers are Not Categorically Exempt from Federal Statutes Prohibiting Employment Discrimination

Tue, 09 Aug 2011 00:00:00 -0500

On August 9, 2011, the Lawyers Committee joined seven other civil rights organizations in filing a friend-of-the-court brief in the Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC, No. 10-553. The brief argues that the First Amendment does not require excluding parochial school teachers from the protections of the important civil rights statutes that prohibit discrimination in employment and that prohibit retaliation for opposing discrimination. Civil rights laws serve a compelling government interest. Protecting parochial school teachers through civil rights statutes does not implicate the Constitution’s protection of religious belief, does not regulate the content of religious doctrine, does not resolve questions of faith, and does not seek to bestow religious authority on particular individuals.

Cheryl Perich taught kindergarten, then fourth grade classes at the Hosanna-Tabor Evangelical Church School from 1999 through 2004. While most of her duties involved teaching secular subjects, she also taught daily religion classes and led students in prayer. Ms. Perich was called a “commissioned minister,” but the religious duties of all teachers, including those who were not members of the Lutheran church, were the same as those of the “commissioned ministers.”

Ms. Perich went on disability leave for the 2004-05 school year. When Ms. Perich tried to return from her leave, the school asked her to resign, instead. She refused to resign and advised that if the school declined to reinstate her, she would file a discrimination claim. The school terminated her employment. She filed a complaint with EEOC for disability discrimination and retaliation.

The EEOC filed a case on her behalf based on retaliation for asserting her rights under the Americans with Disabilities Act. The school claimed that the First Amendment bars courts from hearing anti-discrimination suits brought by “ministerial” employees against religious organizations, and the district court agreed. The Sixth Circuit reversed. The school appealed to the Supreme Court. Dozens of religious organizations have joined amicus briefs arguing that the First Amendment grants broad exceptions to the enforcement of civil rights laws.

The brief points out that civil rights statutes regulate the school’s commercial conduct in employing teachers to perform educational services that are constitutionally subject to extensive governmental regulation. Even where the law burdens religious practice, the court must also weigh the government’s countervailing interest in deciding whether an exemption should be granted. Anti-retaliation provisions are important to effective enforcement of a broad range of statutes. The Government has a compelling interest in preventing retaliation against employees who report unlawful conduct (e.g., child abuse) or cooperate in enforcement proceedings. The school offers no rationale that would allow retaliation in this case but protect those reporting other violations of law. Congress has the power to protect parochial school employees who have been subjected to wrongful discrimination, subject only to the narrowest exceptions necessary to protect the autonomy of religious institutions in matters of governance and doctrine.

While this case concerns parochial school teachers, it will potentially affect the rights of many employees of religiously affiliated organizations. To read the brief filed by the Lawyers’ Committee and other civil rights organizations, please click here.

Lawyers Committee Joins 26 Other Advocacy Groups in Brief Asserting the Right of Employees to Pursue Workplace-Related Claims through Collective Action

Wed, 27 Jul 2011 00:00:00 -0500

On July 27, 2011, the Lawyers Committee joined with 26 advocacy groups in filing a friend-of-the-court brief with the National Labor Relations Board in the case of D.R. Horton, Inc. v. Cuda. The brief argues that an employer’s imposition of a contractual provision prohibiting employees from pursuing workplace-related claims as collective actions or class actions violates the right of employees to engage in concerted activity with other employees, a right guaranteed by the National Labor Relations Act of 1937 (NLRA). Numerous decisions of the National Labor Relations Board over decades have held that pursuing a legal claim in cooperation with other similarly situated employees is “concerted activity” protected by the NLRA. The brief also argues that there is nothing in the Federal Arbitration Act of 1925 permitting employers to use arbitration agreements to deprive workers of their rights under the NLRA to pursue their claims through collective action. Collective action is important to permit employees to pursue claims where the amounts of individual damages are too small to justify an individual lawsuit and/or when patterns of unlawful discrimination cannot be revealed through suits by individual employees. Collective actions also provide greater protection to employees from the risk of retaliation for their complaints of unlawful treatment. Horton argues that the recent Supreme Court ruling in AT&T Mobility v. Concepcion guarantees employers the right to require arbitration of all disputes with employees and to require that employees waive the right to have the similar claims of many employees heard together. This friend-of-the-court brief argues that the Concepcion decision involved consumer rights rather than employee rights and involved state law protections rather than rights protected by federal law, and therefore has no bearing on the ability of an employer to impose arbitration when this deprives employees of the substantive right to concerted activity that is guaranteed by a federal statute, the NLRA. If the National Labor Relations Board agrees with the amici that a forced waiver of collective actions or class actions violates rights provided by the NLRA, employers will not be able to require employees to waive the right class actions to enforce federal anti-discrimination laws, though employers could probably require that such class actions be presented to arbitrators rather than in court. To read the brief filed by the 27 advocacy groups, please click here. The United States Department of Labor and the Equal Employment Opportunity Commission have also filed a brief taking a position similar to the brief joined by the Lawyers’ Committee.

Lawyers' Committee Encourages EEOC Vigilance in Battle Against Employment Discrimination on the Basis of Background Checks

Tue, 26 Jul 2011 00:00:00 -0500

On July 26, 2011, the Equal Employment Opportunity Commission (EEOC) conviened for a hearing on enforcement of title VII as it relates to background checks of Job Applicants. For this event, the Lawyers' Committee for Civil Rights Under Law submitted testimony relaying critical information on the subject to the Commission.

In its testimony, the Lawyers' Committee's Employment Discrimination and Public Policy Projects encouraged the EEOC to "continue its vigilance in litigating [criminal check] cases and partnering with the private plaintiffs' bar in appropriate cases challenging overbroad and non-legitimate use of criminal background checks as a screen for employment" and made the case that the "issue of employer misuse of criminal background checks is crucial to the efforts to reduce employment disparities for minorities and to enhance the economic well-being of minority families and of our nation as a whole."

To read the Lawyers' Committee's written testimony in its entirety, please click here.

For more information on our efforts to combat employment discrimination on the basis of both criminal and credit background checks, please click here and here.

Lawyers' Committee Releases a Preliminary Analysis of the Implications of Wal-Mart v. Dukes on the Future of Employment Discrimination Class Actions

Thu, 14 Jul 2011 00:00:00 -0500

The Supreme Court's decision on June 20, 2011, in Wal-Mart v. Dukes, 10-277, radically altered the long-standing judicial framework for assessing whether plaintiffs can bring cases as class actions. With this sweeping decision, the Court cast aside the traditional role that an appellate court is supposed to play in reviewing lower court decisions and set new rules for employment class action litigation.

Plaintiffs filed a class action on behalf of current and former female employees of Wal-Mart, alleging pay and promotion discrimination throughout Wal-Mart because of subjective decision-making. Plaintiffs claimed that Wal-Mart’s practice of vesting in store managers the discretion to make pay and promotion decisions coupled with a company-wide culture that fostered gender stereotyping led to discrimination against women in pay and promotion. Plaintiffs’ evidence showed that women in hourly positions made, on average, $1,100 per year less than men in similar situations. In salaried management positions, the average difference was $14,500. In 2001, 67% of hourly workers and 78% of hourly department managers were women. However, only 35.7% of assistant managers, 14.3% of store managers, and 9.8% of district managers were female.

There are two major consequences of the Wal-Mart decision – first, it changed the standard of commonality for approving a class action, and secondly, it changed the availability of back pay in a class action where the primary relief sought is injunctive, that is, court ordered changes to the employer’s discriminatory practices. Federal Rule of Civil Procedure 23 provides the basic requirements for class actions. Rule 23 (a) sets out four preliminary requirements that all class actions must meet, one of which is the requirement that there be questions of law or fact common to the class – commonality. Before the Court’s opinion, it was relatively straightforward for plaintiffs to establish commonality by showing that there was one common question of law or fact applicable to the class. However, with this decision, the Court has significantly heightened the level of proof necessary to show commonality. Once a case has met the requirements of 23 (a), Rule 23 (b) then mandates that the class allegations fit into one of three types of class actions. Rule 23 (b)(2) applies when the class seeks injunctive relief. The Court’s Wal-Mart ruling rejected the generally accepted practice of including back pay relief along with injunctive relief in (b)(2) actions and instead found that most claims for monetary relief must be brought as 23 (b)(3) class actions, which are subject to a more stringent inquiry into whether common issues predominate.

Wal-Mart was by far the largest class action ever filed, with as many as 1.5 million class members. It alleged discrimination in pay and promotion as a result of subjective decision making at over 4,000 stores by thousands of managers. It is possible to argue that the Wal-Mart case is unique and that some or all of the opinion should be limited to its facts. It is hard to tell what the actual contours of the decision will be as it is interpreted by the lower courts and the decision is far from clear concerning what kinds of class actions the Supreme Court will allow in the future. As such, it will be years before we know the true effects of Wal-Mart on class action litigation. However, we can preliminarily draw nine implications for the future of employment discrimination class actions from the language of the majority opinion:

The case affirms the use of the three frameworks for bringing employment discrimination cases: individual disparate treatment, pattern and practice disparate treatment, and disparate impact.
The case does not eliminate the use of class actions as a mechanism to challenge discrimination affecting large numbers of employees.
The Court showed extreme hostility towards the size of the Wal-Mart class and the assertion that subjective, discretionary decision-making constitutes an employment practice. It is possible that the impact of the decision will apply only to this type of class action, although the language of the opinion speaks more broadly. It is unlikely that the Court will look favorably on any class approaching the size of Wal-Mart.
The case appears to spell the death of large class actions attacking subjective practices in huge, multi-facility corporations. The Court suggests that classes can meet the commonality criteria where, for example, the same decision-maker has made the personnel decisions for all employees in the class. If a class meets that criterion, then the use of statistical evidence can lead to an inference of discrimination. Thus, the more decentralized the subjective decision-making, the smaller the group of employees who may join in a class action lawsuit. However, if a company makes decisions at the district, regional, or corporate levels, it might be possible to meet the commonality test at these higher levels and include more employees in a class.
The Court endorses the use of (b)(2) class actions to challenge affirmative employer practices that apply uniformly to the entire class. Thus, challenges to the use of paper and pencil tests, specific education requirements, or the refusal to hire anyone with a criminal background of any kind can meet the requirements of commonality and 23 (b)(2) injunctive relief.
The Court unanimously held that a 23 (b)(2) class requesting injunctive relief cannot also request monetary relief – including back pay – unless the monetary relief is merely incidental to the injunctive relief. This holding is contrary to the decisions of many federal circuit courts that have previously permitted substantial back pay as part of the equitable, “make-whole” purpose of injunctions. Instead, the Court indicates that back pay and other monetary relief must be brought as a (b)(3) class action which is subject to the more stringent inquiry into whether common issues predominate and the class action is superior to individual actions. Now, in order to obtain monetary relief in the form of back pay, compensatory damages, and/or punitive damages in a class action seeking injunctive relief, it will be necessary to certify two classes of employees, one under (b)(2) for injunctive relief and one under (b)(3) for monetary damages. There are many hurdles to overcome in bringing such a lawsuit, often called a “hybrid” class action.
The Court provides no guidance on when money damages will be incidental and thus allowable in a (b)(2) class action. The majority opinion suggests that the Court will allow money damages where the individual determination of damages is formulaic and does not require any additional proceedings to determine each individual recovery.
Plaintiffs will have to conduct more in-depth discovery and introduce more evidence on the ultimate merits of their case at the class certification stage.
Because of the restrictive new standards established for approving class actions, it is possible that large numbers of the 1.5 million women who sought justice through the filing of the Dukes v. Wal-Mart case will in turn file individual complaints or numerous, much smaller class complaints. This could flood the already over-burdened EEOC and courts with thousands or tens of thousands of individual claims against employers and could ultimately result in the denial of any day in court to employees who suffer small but persistent discrimination at the hands of large employers.

To read the Supreme Court's opinion in the matter of Wal-Mart v. Dukes, please click here.

Lawyers' Committee Submits Testimony to the Senate Judiciary Committee for their Hearing on "Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior"

Wed, 29 Jun 2011 00:00:00 -0500

The Public Policy Department submitted a testimony statement to the Senate Judiciary Committee opposing the Supreme Court’s recent reinterpretation of Rule 23(a), governing class action certification. The hearing, convened by Senator Leahy, addressed possible congressional responses to the Court’s reinterpretation of legislative civil procedure rules in Wal-Mart v. Dukes and AT&T Mobility v. Concepcion. Witnesses included Betty Dukes, the principle plaintiff in the gender discrimination lawsuit against Wal-Mart, who spoke about how corporations appear insulated from liability. Without access to class action certification, individuals face an unfair disadvantage in the fight against all forms of discrimination. For more about the Lawyers’ Committee stance on this issue, please read our testimony by clicking here.

Lawyers' Committee Acknowledges the 48th Anniversary of the Equal Pay Act of 1963

Fri, 10 Jun 2011 00:00:00 -0500

While much progress has been made since the passage of the Equal Pay Act of 1963, today we acknowledge the continuous discrimination that women experience in the workplace in regards to the compensation they receive for their work. It is because of this discrimination that women still lag far behind their male counterparts in performance-based compensation 48 years after the passage of the Equal Pay Act of 1963.

The severe economic crisis in the United States has caused Americans of all racial and ethnic backgrounds and education levels to experience extreme difficulties in maintaining and/or obtaining meaningful employment opportunities. As the number of single-mother households has increased to an astonishing 9.9 million, it is extremely important that of this group the women, who do obtain employment, receive equal compensation for their work. Unfortunately, women experience continuous discrimination in the workplace in regards to their compensation. To date, full-time working women receive only 77 cents for every dollar paid to men (this is up from the 59 cents that women were paid with the Fair Pay Act was originally passed in 1963). These disparities are even more drastic when race is a factor. Full-time African American women only receive 61 cents, and Latinas only 52 cents for every dollar paid to white, non-Hispanic men. This disparity translates into a loss to American families of financial resources totaling $10,622 a year or $431,000 over a woman’s lifetime. These statistics are inexcusable considering women represent one-half of the paid American workforce yet, there is not a single state where women have gained economic equality with men.

If women received pay equal to that of their male counterparts, they could:

Pay the average costs of utilities for a year with $1,500 remaining or the average; mortgage and utilities for 11 months and 20 days;

Feed a household of four for a year; or

Pay for three years of health insurance premiums with over $400 to spare.

To learn more about the Equal Pay Act, and issues related to the pay gap between men and women, please visit the following links:

“Women Deserve Equal Pay for Equal Work” by Sen. Tom Harkin

What’s the Wage Gap in Your State?

Statement of Senator Harkin Introducing the Fair Pay Act of 2011

To encourage your Congressional representatives to take action and support the principle of equal pay for equal work by co-sponsoring the Fair Pay Act of 2011, please click here.

Lawyers' Committee Celebrates Favorable Supreme Court Opinion in Fox v. Vice

Tue, 07 Jun 2011 00:00:00 -0500

On June 6, 2011, the Supreme Court unanimously reversed an order that awarded attorney’s fees against a civil rights plaintiff because he had joined a frivolous federal claim with a clearly substantial claim under state law. The Court reiterated and amplified the standards for applying many federal civil rights statutes that contain provisions for fee shifting. If the plaintiff is the prevailing party, defendant must pay plaintiff’s reasonable attorney’s fees, and the defendant is entitled to fee shifting only if plaintiff’s claim is found to be frivolous.

The Court declared that, when a plaintiff brings a case that a judge concludes contains both frivolous and non-frivolous claims, a defendant who prevails on the frivolous claims “may recover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all.” The Court instructed the lower courts that a defendant is “to receive only the portion of his fees that he would not have paid but for the frivolous claim.” [Italics added.]

The opinion, authored by Justice Kagan, reversed a decision of the United States Court of Appeals for the Fifth Circuit sustaining a lower court order that dismissed plaintiff’s federal claim as frivolous and remanded the state claims to state court for trial. The court awarded the defendants essentially all their fees, because the frivolous federal claim had been “the parties’ ‘focus’ in the litigation.” In holding this was error, the Supreme Court noted that the trial court’s order reflected that a portion of the time spent defending the federal claim was also necessary to defend the non-frivolous state law claims since the defendants’ attorneys’ work would be useful in the state-court proceedings.

The Supreme Court declined to adopt a “bright-line” test that the Lawyers’ Committee and other amici proposed, that fees should never be shifted unless the entire litigation were found to be frivolous, but the Court adopted a rule very close to an alternative standard urged by amici, that a court order awarding fees to a defendant should “limit fees to those directly and exclusively spent defending against a frivolous federal claim.” Attorneys’ fee provisions apply in many claims brought under civil rights statutes, including employment discrimination lawsuits, and this ruling reinforces Congress’ intent of encouraging meritorious suits.

Click here for the Supreme Court’s opinion.

Click here to read the amicus curiae brief in support of Mr. Fox joined by the Lawyers’ Committee.

Lawyers' Committee Regrets Supreme Court Decision Upholding the "Legal Arizona Workers Act"

Thu, 26 May 2011 00:00:00 -0500

The Lawyers' Committee for Civil Rights Under Law regrets the Supreme Court’s 5-3 decision on May 26, 2011, in the case of Chamber of Commerce v. Whiting. On September 8, 2010, the Lawyers' Committee joined twelve prominent civil rights organizations in filing a friend-of-the-court brief in this case. The Supreme Court’s decision upheld the constitutionality of an Arizona anti-immigrant law known as the "Legal Arizona Workers Act." That state law imposes sanctions, including rescinding of the right to do business in Arizona, for employers who employ unauthorized aliens and requires employers to verify that employees are authorized to work by using an electronic system which is so unreliable that 18% of the workers initially found ineligible through the system are in fact eligible to work.

The brief which we joined argued that in enacting existing immigration laws, Congress struck a careful balance between the Federal interest in eliminating incentives for illegal immigration and longstanding policies prohibiting discrimination in employment on the basis of race or national origin. In particular, when Congress adopted the Immigration Reform and Control Act of 1986, it included a strong nondiscrimination provision within the statute. Similarly, when Congress created an electronic employment verification system (E-Verify) in 1996, it made that system both voluntary and temporary, to enable periodic evaluation and to avoid entrenching discrimination that could occur due to flaws in the system. The "Legal Arizona Workers Act" upsets Congress’ carefully crafted balance and has the effect of fostering discrimination prohibited by federal law. The law creates powerful incentives for employers not to consider or employ workers who look or sound foreign, so as to avoid the risk of sanctions for employing unauthorized workers and to reduce compliance costs. Because the Arizona law conflicts with federal law and undercuts federal immigration policy, it is preempted.

The opinion of the Court, by Chief Justice Roberts, found that the Arizona law was not prempted by the provisions of the Immigration Reform and Control Act, He also ruled that a state could mandate use of the electronic system because, although the statute affirmatively forbade the Secretary of Homeland Security from requiring employers to use the system, it did not forbid other authorities from requiring employers to use the system. Chief Justice Roberts buttressed his argument with the fact that the federal government had in 2008, in defending a suit in the District Court in Maryland brought on behalf of federal contractors who were being required to use the electronic system, had argued that the statute allowed any authority other than the Secretary of Homeland Security (e.g., the President in the Executive Order there challenged) to require that employers use the electronic system to verify that applicants for jobs were eligible to work in the U.S.

In dissent, Justice Breyer noted that the Immigration Reform and Control Act carefully calibrated the sanctions under the act to prevent the act from being unduly burdensome for employers who are not serious offenders and set anti-discrimination fines at equivalent levels to the penalties for hiring unauthorized workers (e.g., a maximum penalty of $6,500 for a second offense). Under the Arizona law, the same employer would be subject to “mandatory permanent loss of the right to do business in Arizona—a penalty that the Arizona Governor has called the ‘business death penalty.’” Thus the state statute “seriously threatens the federal Act’s antidiscrimination objectives by radically skewing the relevant penalties.” Citing documentation from the amicus brief joined by the Lawyers’ Committee, Justice Breyer further noted that “Congress had strong reasons for insisting on the voluntary nature of the [E-verify] system.” The federal process had to correct the system’s tentative “unemployable” indications 18% of the time. The 18% wrongly identified – who therefore posed a risk to the employer of incurring the “business death penalty” if hired – were likely to be persons of foreign origin, by a ratio of 20 to 1. He asked whether workers will understand the possibility of challenging such incorrect findings? Will employers be willing to support workers and to provide them training during such challenges? “Will employers simply hesitate to hire workers who might receive an initial negative verdict—more likely those who look or sound foreign?”

Click here for the Supreme Court's decision. To read the amicus brief filed by the Lawyers' Committee and other civil rights organizations, please click here.

Lawyers' Committee Celebrates Favorable Ruling in Fourth Circuit Sexual Harassment Case

Fri, 06 May 2011 00:00:00 -0500

The U.S. Court of Appeals for the Fourth Circuit on May 6, 2011, in the case of Harris v. Baltimore, reinstated a claim of workplace sex discrimination arising out of a workplace atmosphere that was highly sexualized and offensive. Lynette Harris, an electrician with the City of Baltimore, was subjected to profane, sexually explicit language and a hostile work environment with sexually explicit pictures. The trial court had granted summary judgment for the city, concluding that Harris (1) had not offered sufficient evidence that the harassment was because of her sex and (2) had not offered sufficient evidence that the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. The Fourth Circuit, in an unpublished opinion, reversed the lower court’s ruling and cited extensive evidence in the record showing that the workplace was highly sexualized and Harris’ supervisor repeatedly said that women working there were not welcome. The decision was not a total victory for Harris, as the Fourth Circuit affirmed the grant of summary judgment for the City of Baltimore on Harris’s failure to promote claim. Lawyers’ Committee supported Ms. Harris’ appeal along with other civil rights groups who joined an amicus brief prepared by the National Women’s Law Center.

To read the brief, please click here.

Lawyers' Committee Regrets Supreme Court Ruling in AT&T Mobility, LLC v. Concepcion

Wed, 27 Apr 2011 00:00:00 -0500

The Lawyers' Committee for Civil Rights Under Law regrets the Supreme Court’s 5-4 decision on April 27, 2011 that the Federal Arbitration Act (FAA) preempts states from determining that a class action waiver provision in an arbitration agreement is unconscionable under state law and thus unenforceable. The case, AT&T Mobility, LLC v. Concepcion, concerns a consumer class action complaint against a cell phone company. AT&T had argued that the consumers’ class action was prohibited by an arbitration clause in the service agreement which the consumers had signed. The FAA makes arbitration agreements “valid, irrevocable, and enforceable” except for such grounds as exist for the revocation of any contract. The Ninth Circuit ruled that the arbitration clause’s prohibition of class action was unconscionable and unenforceable under California’s contract law principles, and that these principles did not conflict with the FAA since they applied equally to prohibitions of class action waivers in contracts without arbitration agreements. However, the Supreme Court majority ruled that class action arbitration, except where agreed consensually, is inconsistent with the FAA. Justice Breyer and the other three justices dissenting from the majority opinion noted that, in the absence of class action, small claims (in this case $30.22) would often be foregone since pursuing them individually would often involve too much work.

While this specific case involves consumer rights, the issue has broad implications for employment cases. Arbitration agreements including class action waivers are becoming increasingly common in employment contracts and could severely limit the ability of workers to vindicate their statutory rights, including their rights to protection against employment discrimination.

On October 6, 2010, the Lawyers’ Committee filed an amicus curiae brief in the Supreme Court on behalf of itself and five other employee rights organizations, arguing that the availability of class action claims plays a vital role in protecting employee rights. This is particularly true in the case of small claims which could not economically be vindicated on an individual basis, and pattern and practice discrimination claims where bringing claims on a class action basis permits discovery of statistical patterns and provision of injunctive relief that has greater impact in eliminating discrimination. In addition, class action provides greater protection to employees from the threat of retaliation. The brief argued that the FAA does not preclude courts from striking down particular class action bans as unconscionable because the FAA does not preempt generally applicable state law principles of contract.

Click here for the Supreme Court's decision.

To read the amicus brief filed by the Lawyers' Committee and other employee rights organizations, please click here.

Equal Pay Day 2011: Acknowledging the Gendered Pay Gap

Tue, 12 Apr 2011 00:00:00 -0500

Today is Equal Pay Day, which marks the number of additional days a woman would need work if she wanted to earn the same amount of money that a man earned in 2010 for performing the same job duties. On Equal Pay Day, we acknowledge the continuous discrimination that women experience in the workplace in regards to the compensation they receive for their work. It is because of this discrimination that women still lag far behind their male counterparts in performance-based compensation 48 years after the passage of the Equal Pay Act of 1963.

The severe economic crisis in the United States has caused Americans of all racial and ethnic backgrounds and education levels to experience extreme difficulties in maintaining and/or obtaining meaningful employment opportunities. As the number of single-mother households has increased to an astonishing 9.9 million, it is extremely important that of this group the women, who do obtain employment, receive equal compensation for their work. Unfortunately, women experience continuous discrimination in the workplace in regards to their compensation. To date, full-time working women receive only 77 cents for every dollar paid to men. These disparities are even more drastic when race is a factor. Full-time African American women only receive 61 cents, and Latinas only 52 cents for every dollar paid to white, non-Hispanic men. This disparity translates into a loss to American families of financial resources totaling $10,622 a year or $431,000 over a woman’s lifetime. These statistics are inexcusable considering women represent one-half of the paid American workforce yet, there is not a single state where women have gained economic equality with men.

If women received pay equal to that of their male counterparts, they could:

Pay the average costs of utilities for a year with $1,500 remaining or the average; mortgage and utilities for 11 months and 20 days;

Feed a household of four for a year; or

Pay for three years of health insurance premiums with over $400 to spare.

To learn more about Equal Pay Day, and issues related to the pay gap between men and women, please visit the following links:

Statement by Secretary of Labor Hilda L. Solis on Equal Pay Day

“Another Equal Pay Day? Really?” by Marlo Thomas

“Equal Pay Day 2011: Wal-Mart’s Female Employees are Not Alone” by Heather Boushey and Danielle Lazarowitz

“Women Deserve Equal Pay for Equal Work” by Sen. Tom Harkin

What’s the Wage Gap in Your State?

Statement of Senator Harkin Introducing the Fair Pay Act of 2011

To encourage your Congressional representatives to take action and support the principle of equal pay for equal work by co-sponsoring the Fair Pay Act of 2011, please click here.

Lawyers' Committee Applauds Maryland's Progress toward Preventing Discrimination on the Basis of Credit Checks

Tue, 12 Apr 2011 00:00:00 -0500

On April 12, 2011, Maryland Governor Martin O'Malley signed the Job Applicant Fairness Act, making Maryland the 5th state to pass legislation limiting the use of credit checks in the employment context.

The Job Applicant Fairness Act restricts employers' use of credit checks during the hiring process. Employers frequently use credit checks as a tool for the evaluation of job applicants despite there being no evidence that negative credit histories correlate in any way to job performance. Unsurprisingly, this action frequently has a negative impact on job applicants who have poor credit histories that may be a result of a medical illness, divorce, or other unfortunate or unavoidable event.

The passage of this bill is celebrated by many unions, community groups, and advocacy organizations - like the Lawyers' Committee - that encouraged Maryland to take action against discrimination on the basis of credit checks.

Although the Job Applicant Fairness Act includes exemptions and prevents those who have been wronged from seeking redress through a private right of action, this bill represents progress and is a good first step toward ensuring that credit background checks do not unfairly result in discrimination against job seekers with poor credit histories.

To read the commentary submitted to the Maryland Senate by the Lawyers' Committee, please click here.

To read the commentary submitted to the Maryland House by the Lawyers' Committee, please click here.

To read Maryland's Job Applicant Fairness Act, please click here.

To learn more about our Access Campaign, which seeks to combat barriers to gainful employment for people with negative credit or criminal histories, please click here.

Lawyers' Committee Applauds Supreme Court Ruling in Kasten v. Saint-Gobain Performance Plastics Corp.

Tue, 22 Mar 2011 00:00:00 -0500

The Lawyers' Committee for Civil Rights Under Law applauds the Supreme Court’s decision on March 22, 2011 that the anti-retaliation protections for employees making objections to violations of the Fair Labor Standards Act (governing minimum wages and overtime) cover oral as well as written complaints. The case, Kasten v. Saint-Gobain Performance Plastics Corporation, concerns Kevin Kasten, who worked for Saint-Gobain Performance Plastics as an hourly-paid manufacturing and production worker from 2003 until 2006. Kasten verbally complained to his supervisors that the location of the employer’s time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Kasten alleges that he was terminated in retaliation for his verbal complaints.

On June 23, 2010, the Lawyers’ Committee filed an amicus curiae brief in the Supreme Court , on behalf of the Lawyers’ Committee and five other advocacy organizations, arguing that, contrary to the ruling below in the Seventh Circuit Court of Appeals, protecting employees making verbal objections to violations of the Fair Labor Standards Act (FSLA) is necessary to fulfill the statutory intent of the law, is required by the realities of the workplace, and would give proper deference to the longstanding interpretation of the U.S. Department of Labor that verbal complaints are protected under the FLSA. Employers’ internal grievance policies and procedures often encourage employees to make oral reports of potential employer violations. Employees making such oral complaints need to be protected from retaliation. Although this case specifically addressed the anti-retaliation provision of the FLSA, the decision’s emphasis on interpreting employment statutes to protect employees from retaliation for complaints that employers are violating federal employment laws will likely have implications for other statutes designed to protect workers from discrimination and other unlawful conduct.

Click here for the Supreme Court's decision.

To read the amicus brief filed by the Lawyers' Committee and other advocacy organizations, please click here.

Supreme Court Upholds "Cat's Paw" Theory in Case of Staub v. Proctor Hospital

Tue, 01 Mar 2011 00:00:00 -0600

The Lawyers’ Committee for Civil Rights Under Law applauds the Supreme Court’s unanimous decision on March 1, 2011 in Staub v. Proctor Hospital. The Supreme Court’s decision reversed that of the Seventh Circuit, which found that Proctor Hospital was not liable for anti-military employment discrimination against Vincent Staub because the hospital’s decision-maker had relied on more than the bias of two supervisors in determining to fire Mr. Staub.

The Lawyers’ Committee drafted an amicus brief in this case on behalf of itself, the AARP, and the Equal Justice Society. The amici argued that employers should be liable for biased actions of employees who act as agents of their employers in influencing or evaluating decisions of employment but do not render final decisions. The Supreme Court’s decision construes the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids employers from making adverse employment decisions based on a person’s military membership, to protect employees even where the ultimate decisionmaker acts without any bias, so long as bias against military membership was a “motivating fact in the employer’s action.”

The Supreme Court’s decision overturns the Seventh Circuit decision, which rejected Staub’s legal argument as a “cat’s paw” case, meaning that “he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Justice Scalia, writing for the unanimous Court, upheld the theory of "cat's paw" and found that an “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

This decision has important implications for other types of employment discrimination cases because the language in USERRA that the Court construed is very similar to the language used by Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex or national origin.

Click here to read the Lawyers’ Committee’s amicus brief.

Click here to access the Supreme Court’s Opinion in this matter.

Supreme Court Upholds Right to Sue for Retaliation Based on Actions Taken Against Family Members and Close Associates of an Employee Complaining of Discrimination

Mon, 24 Jan 2011 00:00:00 -0600

The Lawyers' Committee for Civil Rights Under Law applauds the Supreme Court's unanimous decision on January 24, 2011, that Mr. Thompson, who claims he was fired because his fiancée filed a sex discrimination charge against their mutual employer, has the right to pursue a retaliation claim under Title VII of the 1964 Civil Rights Act (Thompson v. North American Stainless LP, U.S., No. 09-291, 1/24/11). The Lawyers'Committee had joined an amicus brief filed on this case on behalf of a number of civil rights organizations, written by Michael Foreman, a Pennsylvania State University law professor and former Lawyers' Committee's deputy director.

The amici argued that any employee injured by unlawful retaliation has the right to challenge the unlawful action, even if he were not the party who actually engaged in the protected activity to vindicate their rights. The Supreme Court's decision providing protection for employees against "any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination", such as discharging a family member of an employee claiming her rights under anti-discrimination legislation, is an important endorsement of a long-standing position of the Equal Employment Opportunity Commission. Protection of family members has become more critical with the increased participation of women in the labor market and can be particularly important in small towns where one employer dominates employment opportunities.

The Supreme Court's decision overturns a Sixth Circuit decision stating that Mr. Thompson did not have the right to sue alleging retaliation based on his fiancée's actions since he had never himself engaged in protected activity under Title VII. However, the Supreme Court stated "Thompson was an employee of [North American Stainless], and the purpose of Title VII is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation-collateral damage, so to speak, of their employer's unlawful actions. To the contrary, injuring him was the employer's intended means of harming Regalado [Thompson's fiancée at that time, now his wife]. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson was well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue."

Click here to read the amicus curiae brief in support of Mr. Thompson joined by the Lawyers' Committee.

Click here for the Supreme Court's opinion.

Lawyers' Committee Applauds EEOC's Ambitious Agenda, Focus on Background Checks

Mon, 29 Nov 2010 00:00:00 -0600

On November 29, 2010, the National Law Journal ran an article about the Equal Employment Opportunity Commission and the "ambitious" agenda of Chairwoman Jacqueline Berrien, an alumnus of the Lawyers' Committee.

Berrien, along with a number of other leaders currently serving at the EEOC, was a recess appointment to the EEOC. These recess appointments are set to expire by the end of 2011 without Senate confirmation.

Berrien reports that she and her associates came to their positions "ready to work," and are tackling challenges such as "reducing the agency's...backlog of charges," and "bringing more high-impact cases." The article highlights the Commission's work on background checks, an issue at the forefront of the Lawyers' Committee's Access Campaign.

The article also quotes Sarah Crawford, Senior Counsel of the Lawyers' Committee's Employment Discrimination Project, on the need for the EEOC to bring high-impact cases challenging "race and color" discrimination. Sarah said, "It's much easier for attorneys in private practice to identify cases where there is blatant discrimination...[b]ut the EEOC can use its resources...to bring the more difficult, systemic cases."

The article is accessible here to subscribers of the National Law Journal.

Miami Herald Reports on Lawyers' Committee and Outten and Golden's Appolon v. University of Miami Credit Checks Case

Tue, 23 Nov 2010 00:00:00 -0600

Senate Fails to Ensure Equal Pay for Women

Thu, 18 Nov 2010 00:00:00 -0600

Employment Discrimination Project Held Convening on Credit Checks as the Next Wave of Hiring Discrimination

Thu, 28 Oct 2010 00:00:00 -0500

On October 28, 2010, the Lawyers' Committee hosted a Credit Checks Convening involving policymakers, researchers, and employment law professionals in a discussion of credit checks in the employment process. The panel discussion topics included "An Overview of the Facts, the Research, and Current Legal Protections," "The Need for Policy Change," and "Developing Effective Litigation Strategies." The convening also recommended the next steps for the advocacy community to continue the fight against inappropriate use of credit checks for employment decisions You can access a summary of the Convening by clicking here.

To learn more about the Access Campaign, which focuses on examining and dismantling obstacles to gainful employment for persons with negative credit histories or arrest or conviction records, please click here.