San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number

Entries in Title VII (3)

Tuesday
Mar012016

Employers: Criminal History Inquiries May Get Tricky 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Employment Background ChecksProposed Amendment to California Code of Regulations 

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions. 

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.

According to the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2012 Guidance on Criminal Background Checks, an employer's criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.

California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:  

  • Arrests or detentions not resulting in conviction;

  • Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);

  • Convictions for most marijuana possession offenses more than two years old;

  • Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8

There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.

New Rules for Background Checks?

 

The proposed amendment seeks to introduce regulation 11017.1 "Consideration of Criminal History in Employment Decisions."

It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9).  It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco's Fair Chance Ordinance.)    

Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:

"Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions ... may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin." 

Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity 

  • The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.  In order to establish the "job-related and business necessity" criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:

a. The nature and gravity of the offense or conduct;

b. The time that has passed since the offense or conduct and/or completion of the sentence; and

c. The nature of the job held or sought 

  • Demonstrating that the policy is appropriately tailored to the job requires the employer to:

a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the position; or

b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

  • Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.  

  • Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate.  If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision. 

But that's not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice  – such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.

Hearing, "Sentencing" & Bottom Line for Employers

 

The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.  

If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.    

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Sep152015

Can Kim Davis Be Fired? What CA Employers Should Know About Religious Accommodations

Wage and Hour DefenseAttorney for Employers

by Sue M. Bendavid

818.907.3220

 

Last June, the U.S. Supreme Court determined that same-sex marriages are a fundamental liberty protected by the 14th Amendment of the U.S. Constitution – and that states must issue marriage licenses to same-sex couples.

Kim Davis, a county clerk in Kentucky disagreed, citing religious reasons for refusing to sign marriage licenses for gay couples. Davis even spent time in jail for her continual refusal to do so, which promptly led many to wonder, "Can Kim Davis be fired?"

The short answer is no. Davis was elected – she can either resign, be impeached, or finish her term. But if she were NOT a public official chosen via election, merely an at-will employee for a private company…could she be fired then? What if she worked to sell gowns in a bridal shop here in California?

The answer then becomes a little more complicated.

Federal Laws & Religious Discrimination

Many employers know that Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in the workplace. But some employers will not know that the same federal law also prohibits job segregation – an employee like Davis refusing to perform duties because of religious beliefs might be protected from being forced to take another position, such as one with no customer contact, for instance.

Also, Title VII mandates accommodations when reasonable. Workers citing religious reasons for refusing to perform a task or conform to workplace rules (e.g. a bartender refusing to wear a revealing uniform, a healthcare worker refusing to be vaccinated, or a floral designer refusing to provide flowers for a same-sex wedding) may suggest or be offered workaround solutions.

If the requested accommodation does not result in undue hardships such as: additional excessive costs, safety concerns, decreased efficiency, or infringement on someone else's rights – the accommodation should be implemented by the employer.

State Protections for Employees

California's Fair Employment and Housing Act (FEHA) is similar to Title VII in principle – it also prohibits employers from discriminating against applicants and employees because of religious beliefs and requires reasonable accommodations to be made.

Under FEHA, an employer would have to show that there will be significant difficulty or expense should the employer make a religious accommodation.

Keep in mind, there may be reasons to terminate an employee, but employers should be sure those reasons are valid and not in violation of state or federal protections.

In Nava v. Safeway Inc., for example, employee Juan Nava was terminated for destruction of  company property one week after he admitted to being offended by and subsequently removing, a gay pride poster from an employee break room. Nava sued for wrongful termination.  Safeway responded with an anti-SLAPP motion moving to dismiss the case.  Safeway argued that the lawsuit sought to censor and interfere with Safeway’s right to freedom of expression.

The trial court decided for Safeway, but a Fifth Appellate District Court reversed – finding that (although it was a close call and Safeway might later prevail) Nava could also potentially prevail with his wrongful termination suit. Therefore, the Court allowed the lawsuit to proceed.

Employer Takeaway

So back to the question: What do you do with an employee like Kim Davis?

In California, you accommodate when you can because both state and federal laws protect the religious beliefs and practices of the employee.  Absent undue hardship, you cannot take adverse action, like cutting back her hours or denying her training opportunities.  Nor should you let other employees mock her for her beliefs or anything else.  

Accommodations may cost you time or money. But in the long run, it will be less expensive than a discrimination suit.

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com; or by phone: 818-907-3220 for more information.

Monday
Apr132015

Transgender Rights in the Workplace: A Guide for Employers to Protect Against Harassment & Discrimination

Business LitigationEmployer Attorney

by Hannah Sweiss

818.907.3260

 

Employer Discrimination Defense AttorneyLast week, President Obama signed an executive order banning discrimination against gay or transgender federal employees and contractors. On the same day, the first gender-neutral bathroom became available in the White House. The topic of transgender identity may be news to many. However, beyond the spotlight, transgender identity and the struggles surrounding transgender persons are real, particularly in the workplace. 

On March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.

According to NPR, the EEOC has helped more than 1,200 lesbian, gay, bisexual and transgender (LGBT) persons bring employment discrimination claims under Title VII since 2013. Some employer defendants have tried to claim Title VII does not protect transgender persons, but both state and federal courts disagreed.

As transgender rights awareness continues to gain momentum, employers need to be prepared to deal with new issues related to gender identity, gender stereotyping, and gender transitioning.

Federal Protections for Transgender Individuals

In 2012, the EEOC issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.

In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender employee who transitioned from male to female, by barring her from using the same restroom as other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to the employee after her transition. The EEOC also determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII.

The EEOC also recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically addresses "Emerging and Developing Issues," such as protections for LGBT individuals under Title VII of the 1964 Civil Rights Act. One EEOC initiative under the plan includes forming an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country – briefs filed by someone not a party to the litigation, but who have an interest (usually a social concern) in the outcome. 

Gender Discrimination Law

California Protections for Transgender Individuals

The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because of the person’s gender identity. California Government Code sections 12940(a) and 12926(p).

Last year, the California Department of Fair Employment and Housing (“DFEH”), brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery.

The FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual). The expanding gender-identity protections safeguard employees who wish to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance. Employees’ gender identity and gender expression (including presenting in a way that does not comport with traditional gender roles) should not be a basis to treat employees differently.

Employer Takeaway

Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. To help ensure a workplace free from discrimination and harassment for all employees:  

  1. Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies and awareness of gender identity in proactive diversity training.

  2. Ensure employees know harassment and discrimination will not be tolerated based on sex, gender, sexual orientation, gender identity and/or gender expression.

  3. Employees should be addressed by their names or preferred title by all persons in the workplace.

  4. Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity.

  5. Consider assigning a gender-neutral restroom or locker room to accommodate ALL employees, whether male, female or transitioning.

  6. Ensure the privacy of gender-transitioning employees.

  7. If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete. 

Although employers and HR staff may be aware employees are protected against discrimination based on gender, gender identity and gender expression under California and Federal law, transgender discrimination or harassment claims may arise from others employed in the workplace. 

To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.

 

Hannah Sweiss is an Employer Defense Attorney at our firm. Contact her via email: hsweiss@lewitthackman.com or by phone: 818.907.3260.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120