Category Archives: Discrimination and Harassment
The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011. Most employers expected that the DOL’s newer forms, which can be found here, would comply with applicable laws. Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, don’t comply with the Genetic Information Nondiscrimination Act (GINA).
Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from any applicant or employee, there is a safe harbor for employers who inadvertently receive genetic information in response to a lawful request for medical information, such as for FMLA purposes.
Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees and their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Employers who use this language and still receive genetic information from a health care provider will be deemed to have received the information inadvertently.
Takeaway: Employers should realize that they cannot always rely on government forms. Employers should add the GINA ”safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims. The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information received in response to such a request. For more tips on complying with GINA, click here.
As all employers know, the Immigration Reform and Control Act of 1986 requires employers to verify an employee’s work authorization status through the use of an “I-9” form. Generally, the biggest pitfall employers faced with the I-9 process was ensuring the paperwork was completed correctly, in a timely fashion, and maintained properly in case of an audit. Unfortunately, the Department of Justice is now focusing on the I-9 process for a completely different reason: National Origin Discrimination.
Along with race, gender, disability, age, and other “protected classes,” employers cannot discriminate on the basis of an employee’s national origin. Although this prohibition may evoke images of signs from a bygone era that stated: “No Irish Need Apply,” it is now becoming an issue for employers that take seriously immigration laws. On the one hand, an employer may be liable for hiring undocumented workers – who are, by definition, not United States citizens. On the other hand, an employer cannot treat a non-U.S. citizen applicant or new hire differently than a United States citizen.
Recently, the Department of Justice brought suit against a major producer and processor of eggs and egg-related products, with forty locations in six states, and approximately 1,850 workers. The employer was enrolled in the Government’s “E-Verify” program. According to the Complaint, the employer also utilized commercially-available third-party software “that integrated both the process of generating an electronic Form I-9 and access to the E-Verify program.” This program, according to the Department of Justice, “guided authorized users through the electronic Form I-9 process and the E-Verify program by soliciting information about a new hire and, based on the information provided, presented a series of additional informational screens.”
The software, the Government alleges, then sent the user on one of two paths, depending on whether the new hire was a U.S. citizen or a non-U.S. citizen. If the new hire was a U.S. citizen, the software instructed the user to accept verifying documents listed in Columns A, B, or C on the I-9 form. In contrast, if the new hire was not a U.S. citizen, the software instructed the user to only accept Column A documents. Based upon those allegations, the Department of Justice claims that the employer, “knowingly treated individuals differently in the employment eligibility verification process on account of their citizenship status.”
As relief, the Department requested, among other items:
- That the affected individuals receive “full remedial relief” ”including back pay, front pay and/or reinstatement;”
- An order for “injunctive measures to overcome the effects and prevent the recurrence of the discriminatory practices”; and
- Finally, that the employer “pay an appropriate civil penalty as determined by the Administrative Law Judge for each work-authorized non-U.S. citizen who is found to have been subjected to the pattern or practice of discriminatory employment eligibility verification practices alleged in this Complaint.”
If the Department of Justice is successful, the price paid by the employer for utilizing a new piece of software will be steep. The employer is potentially liable for front pay, reinstatement, and a per-person civil penalty, for possibly hundreds of individuals.
Takeaways: The intersection of employment laws and immigration laws can be complicated and mistakes can be costly. Even when an employer takes action, in good faith, to comply with one set of rules and regulations, the employer can, in the process, become liable for violations of other rules and regulations. Most importantly, it is worth remembering that software developers that create useful, time-saving tools may not always consider the legal implications of the applications created. When implementing new software, or enrolling in new online tools, having counsel review the system upfront may save significant expenses later if the software creates more problems than solutions.
The Minnesota Human Rights Act (“MHRA”) requires that employees (1) bring a civil action, (2) file a charge with a local commission, or (3) file a charge with the commissioner within one year after the discriminatory practice occurred. Minn. Stat. § 363A.28. The running of the one-year statute of limitations period is suspended while the parties engage in a dispute resolution process, such as arbitration or mediation.
If an employee chooses to first bring a charge of discrimination with the Minnesota Department of Human Rights (“MDHR”), the employee may subsequently bring a civil action. When doing so, the civil action must be brought:
- Within 45 days after receipt of notice that the commissioner has dismissed a charge;
- Within 45 days after receipt of notice that the commissioner has reaffirmed a determination of no probable cause or has decided not to reopen a dismissed case; or
- After 45 days from filing of charge, if a hearing has not been held or if the commissioner has not entered into a conciliation agreement that the charging employee signed. The charging party must also notify the commissioner of an intention to bring a civil action, which must be commenced within 90 days of giving the notice.
Takeaway: As soon as employers receive an employee’s charge of discrimination or civil action, which alleges discrimination in violation of the MHRA, they should make sure that the employee has met the applicable statute of limitations. If the employee failed to timely file a charge or initiate a civil action, the employer has a strong defense and may be able to get the claim dismissed.
The Immigration Reform and Control Act (IRCA) makes it illegal for employers to employ knowingly an unauthorized alien, but it also prohibits employers from discriminating against employees on the basis of national origin or citizenship status. Here’s what employers need to know about the IRCA:
Prohibition Against Employing Unauthorized Aliens
The IRCA states that it is illegal for an employer “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.” The IRCA also generally makes it illegal to hire an individual for employment in the United States without verifying his or her eligibility to work in the United States through the I-9 process. Good faith compliance with the I-9 process is an affirmative defense to an allegation of knowing employment of unauthorized aliens. 8 U.S.C. § 1324a.
Prohibition Against Discrimination On the Basis of National Origin or Citizenship Status
The IRCA make it illegal for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment because of: (i) the individual’s national origin; or (ii) the individual’s citizenship status. However, the IRCA states that it is not illegal for an employer “to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.” 8 U.S.C. § 1324b.
Takeaways: In some circumstances, it can be difficult for employers to comply with the dual purposes of the IRCA. Employers must be concerned not only with avoiding employment of unauthorized aliens, but also with avoiding discrimination against individuals based on their citizenship status or national origin. Careful compliance with the I-9 process is one of the most effective ways to minimize an employer’s risks in this area.
A federal court in Minnesota recently held that employees of Minnesota companies who neither live nor work in Minnesota are not entitled to the protections of the Minnesota Human Rights Act (MHRA).
In Longaker v. Boston Scientific Co., the court held that an out-of-state employee of Boston Scientific was not entitled to the protections of the MHRA. The employee worked as a sales representative in California. Boston Scientific has thousands of employees in Minnesota, and the employee’s agreement with Boston Scientific stated that his employment was governed by Minnesota law. The court held that the employee lacked standing to sue Boston Scientific under the MHRA. The court explained that: (1) there is general presumption against out-of-state application of state statutes; and (2) the explicit language of the MHRA limits its application to in-state residents and employees. Because the employee was a California resident and his employment took place entirely in California, the employee lacked standing to assert a claim under the MHRA.
Takeaway: Employees for Minnesota companies who neither live nor work in Minnesota are likely not entitled to the protections of the Minnesota Human Rights Act. However, out-of-state employees may be protected by the laws of the state in which they are located.
Under the ADA, an employer “may require” a medical examination or inquiry of an employee so long as it is “job-related and consistent with business necessity.” 29 C.F.R. § 1630.14(c). Under the MHRA, an employer may request that an employee provide medical documentation concerning the employee’s continuing ability to perform the job or potential need for accommodation “with the consent of the employee.” Minn. Stat. § 363A.20, Subd. 8(a)(2).
In Crummy v. Enterprise Minnesota, the Minnesota Court of Appeals held that an employer discriminated against an employee when it demanded that he provide medical documentation for his dyslexia and fired him for not providing the documentation. 2012 WL 360391 (Minn. Ct. App. 2012). The employer argued that the employee was insubordinate when he did not provide the requested medical documentation, but the court rejected this argument. The facts of the case are relatively unique because the court found that the employee never requested an accommodation from the employer, but the employer requested medical documentation from the employee anyway.
Takeaway: The Crummy case highlights the potential significance of minor language differences between the ADA and MHRA. When responding to requests for accommodation from employees, employers in Minnesota need to ensure that their practices are in compliance with both statutes.
According to a recent decision from the Equal Employment Opportunity Commission (EEOC), discrimination by an employer against a transgender individual violates Title VII of the Civil Rights Act of 1964. In Macy v. Holder, the EEOC held that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”
The EEOC’s decision in Macy is consistent with decisions from several federal circuit courts. The Eleventh Circuit Court of Appeals held that discrimination against transgender individuals violated Title VII in Glenn v. Brumby, 724 F.Supp.2d 1284 (11th Cir. 2010). The Sixth Circuit Court of Appeals reached the same conclusion in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
Takeaway: Under federal and Minnesota state law, it is illegal for employers to discriminate against transgender applicants and employees. To reduce potential liability, employers should ensure that their managers and supervisors understand the legal protections that apply to transgender individuals.
What Employers Need to Know About the EEOC’s New Regulations Concerning Reasonable Factors Other Than Age Under the ADEA
The Equal Employment Opportunity Commission (EEOC) recently released a final rule amending its regulations concerning reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA). Here’s what employers need to know about the new regulations:
The RFOA Defense: The ADEA provides that it is not unlawful for an employer to take an action otherwise prohibited by the ADEA if the action is based on “reasonable factors other than age.” See 29 U.S.C. § 623(f)(1). The RFOA defense is not available for employment practices that use age as a limiting criterion, nor is it available against claims for disparate treatment discrimination – it only applies to claims alleging disparate impact discrimination.
What is a “Reasonable Factor Other Than Age”? The EEOC’s new regulations define a “reasonable factor other than age” as a “non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.”
How Does An Employer Prove the RFOA Defense? The EEOC’s new regulations state that, in order to use the RFOA defense, an employer must show that the employment practice was both: (1) reasonably designed to further or achieve a legitimate business purpose; and (2) administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.
What Considerations Are Relevant to the RFOA Defense? The EEOC’s new regulations provide that the following factors should be considered when determining whether the RFOA defense applies:
- The extent to which the factor is related to the employer’s stated business purpose;
- The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
- The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
- The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
- The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
Takeaway: Many of the considerations identified in the EEOC’s new regulations for the RFOA defense relate to steps that an employer should take before a claim of age discrimination is asserted. Employers that apply standards that arguably have a disparate impact based on age should carefully review their policies and practices to ensure that they comply with the EEOC’s new regulations concerning the RFOA defense.
The Age Discrimination in Employment Act (ADEA) is a federal law that generally makes it unlawful for employers to discriminate against applicants or employees on the basis of age. Here’s what employers need to know about the ADEA:
Which Employers Are Subject to the ADEA? The ADEA applies to any employer engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. See 29 U.S.C. § 630(b).
What Employees Does the ADEA Protect? The protections of the ADEA are generally limited to individuals who are at least 40 years of age. See 29 U.S.C. § 631(a).
What Does the ADEA Prohibit? The ADEA makes it unlawful for any employer to:
- Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
- Limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
- Reduce the wage rate of any employee in order to comply with the ADEA.
See 29 U.S.C. § 623(a).
What Exceptions Apply to the ADEA? The ADEA contains a number of exceptions that allow employers to avoid liability in limited circumstances. These exceptions include, but are not limited to, the following:
- When age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business;
- When the differentiation is based on reasonable factors other than age; or
- When the employer’s practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located.
The ADEA also provides that it is generally not unlawful for an employer to:
- Discharge or discipline an individual for good cause;
- Observe the terms of a bona fide seniority system that is not intended to evade the purposes of the ADEA and that does not require or permit the involuntary retirement of any individual in violation of the ADEA; or
- Observe the terms of a bona fide employee benefit plan that is otherwise compliant with the ADEA.
See 29 U.S.C. § 623(f).
Takeaway: The EEOC reported receiving 23,465 charges alleging age discrimination in 2011. To reduce the potential for liability, employers should ensure that their policies and practices are in compliance with the requirements of the ADEA.
The Genetic Information and Nondiscrimination Act (GINA) was passed in 2008 and it prohibits genetic information discrimination in employment. It applies to employers with 15 or more employees. While the law became effective in 2009, many employers are still unaware of GINA and what it requires. Here are some tips to help employers comply with GINA:
- Do Not Use Genetic Information for Employment Decisions: GINA prohibits discrimination on the basis of genetic information in any aspect of employment, including hiring, firing, wages, promotions, layoffs, work assignments, benefits, and the like. As the Equal Employment Opportunity Commission (EEOC) has stated, “An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.”
- Avoid Asking Questions About an Employee’s or Applicant’s Medical History: Genetic information that is covered by GINA generally includes any information about a genetic test for a person or the person’s family members. Employers need to be aware that an individual’s medical history is considered protected genetic information. Employers should be vigilant to ensure that job applicants and employees are not asked about their family medical history, nor should that history be used as a basis for any employment decision.
- Keep Medical Information About an Employee’s or Applicant’s Medical History Confidential: Even vigilant employers are likely to receive genetic information about employees or job applicants. Genetic information may be received via a leave request, an accommodation request under the Americans with Disabilities (ADA) Act, a worker’s compensation claim, or in some other legitimate, lawful manner. An employer that receives genetic information about employees or applicants has an obligation to keep genetic information confidential, just like the obligation to keep other medical information confidential under the ADA.
- Retain All Employment Records As Required by the EEOC: Finally, the EEOC now requires employers to retain employment records for GINA just like an employer’s record retention obligations under Title VII and the ADA. Employers must retain personnel or employment records for one year from the date they were made or the date an employment action was taken, whichever is later. Additionally, records relevant to a discrimination charge filed under Title VII, the ADA, or GINA must be kept until the claim is fully resolved.
Takeaway for employers: Be sure not to use genetic information as the basis for any employment-related decision. If an employer receives genetic information for an applicant or employee, the genetic information must be kept in a confidential file, separate from other personnel records. This confidential file should generally be accessible only by human resources personnel or other management employees with a legitimate need to know.
The Genetic Information Nondiscrimination Act (GINA) is a federal law that prohibits employers from discriminating against employees or applicants on the basis of genetic information or – subject to certain exceptions – requesting, requiring, or purchasing genetic information with respect to an employee or a family member of the employee. See 42 U.S.C. § 2000ff-1. Here’s what employers need to know about GINA:
What Employers Are Subject to GINA? GINA generally applies to any employer that is also subject to Title VII, including any employer who is engaged in an industry affecting commerce and who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such an employer. See 42 U.S.C. § 2000ff(2)(b).
What is “Genetic Information”? For purposes of GINA, “genetic information” means information about: (i) an individual’s genetic tests; (ii) the genetic tests of family members of an individual; (iii) the manifestation of a disease or disorder in family members of an individual; or (iv) any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by an individual or a family member of the individual. “Genetic information” does not include information about the sex or age of any individual. See 42 U.S.C. § 2000ff(4).
What Are “Genetic Tests”? “Genetic test” means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes. “Genetic test” does not include an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes. See 42 U.S.C. § 2000ff(7).
What Are “Genetic Services”? “Genetic services” means: (i) a genetic test; (ii) genetic counseling (including obtaining, interpreting, or assessing genetic information); or (iii) genetic education. See 42 U.S.C. § 2000ff(6).
Takeaway: As with statutes like Title VII or the Americans with Disabilities Act, familiarity with the requirements of GINA will assist employers to avoid potential liability for employment discrimination.
Minnesota Employer.com recently reported that the EEOC received an all-time high number of 99,947 charges of employment discrimination in its Fiscal Year 2011. In the same year, the EEOC resolved an all-time high number of 112,499 discrimination charges.
The EEOC’s statistics show the vast majority of the cases resolved by the EEOC in 2011 were baseless. The EEOC’s statistics show that 74,198, or 66%, of the cases resolved by the EEOC in 2011 resulted in a finding of no reasonable cause to believe that discrimination occurred. That number is higher than the number of no reasonable cause determinations from the EEOC in any previous year – both in terms of the overall number of no reasonable cause determinations and in terms of the percentage of all charges resolved.
Takeaways: In some cases, a frivolous charge of discrimination can be just as expensive to defend against as a valid charge of discrimination. While an employer cannot prevent employees from filing unsupported charges with the EEOC, having good HR practices in place should help an employer get a charge of discrimination dismissed quicker and cheaper.