You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks.  Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.

The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin.  As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class.  The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin.  However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.

If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again.  Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.

In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation.  It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns.  However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking.  The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.

Name:  Rachel Fletcher
Title:  Director of Human Resources
Company:  Colliers International – Atlanta Realty, LLC

1.  How many years have you been working in HR?  4

2.  Favorite thing about working in HR?  There are many things!  The main two I equally enjoy are solving problems and the diversity each day.

3.  Best piece of advice you ever received about a career in HR?  HR is about dual focus, the employee and the business.

A few weeks ago, our colleague posted about whether obesity would become a protected class.

Biases based upon appearance don’t end with obesity.  Studies show that:

Can our current set of federal, state, and local discrimination laws and regulations properly address appearance-based discrimination?  Or does this bias demand that unattractiveness be made a new protected class?

Our Troutman Sanders LLP Labor & Employment Group just sent out an Advisory on the NLRB’s Union Rights Poster Rule.  In a nutshell, the Rule — which requires employers to put up posters informing employees of their rights under the National Labor Relations Act — was supposed to go into effect on April 30, 2012.  However, a federal district court last week found the rule to be invalid.

We often hear that certain employer actions are “illegal.”  Sometimes employees think so, sometimes its supervisors, and occasionally its even HR professionals (or even non-employment lawyers dabbling where they shouldn’t.)  While some employer actions are legally prohibited, below are a few actions often thought to be illegal that are actually legal.  Of course, these actions are often terrible ideas — and easy ways to get sued.

What does it mean to provide a “safe” workplace?

For careful employers, the concept of workplace safety is not limited to preventing accidents (slips, falls, and equipment injuries) that lead to workers’ compensation claims.  Employers must also consider the threat of workplace violence, which usually takes one of three forms:  (1) violence between co-workers; (2) violence between employees and customers; and (3) violence between employees and the general public.  Each industry faces unique challenges in preventing workplace violence.  Let’s consider two examples – a bank and a hospital. The bank is likely to be more concerned with preventing a robbery than the hospital.  On the other hand, the hospital may focus more on protecting employees from potentially violent patients.  In both examples, the careful employer must take reasonable steps to assess and prevent violence against employees.

With baseball season underway, minds have turned to “America’s Pastime.”  Major League Baseball, like every employer should, has issued a social media policy.  A quick review raises questions about whether portions of the policy will “strike out” if reviewed by the National Labor Relations Board (NLRB), which has been very active in reviewing employer policies and actions relating to social media use by employees. The NLRB is concerned by social media policies it views as unfairly restricting employees — including those not even working in a unionized workplace — from engaging in “protected concerted activity” as defined by Section 7 of the National Labor Relations Act (NLRA).  Simply put, restricting employees from freely discussing their “conditions of work” is considered a violation of Section 7.

So, will Major League Baseball’s social media policy be “safe” at home?  Let’s play umpire…

Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 

Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea?