ERE.net

Complaints of retaliation by employers trumped race for the second consecutive year, according to the U.S. Equal Employment Opportunity Commission.

The EEOC said total new complaints during fiscal 2011 were just slightly ahead of 2010. Last year it received 99,947 claims compared to 99,922 the year before. It also reported taking in $455.6 million through its administrative program and litigation.

Released last week, the stats show charges of retaliation by employers against workers who raised discrimination issues accounted for 37.4 percent of the commission’s workload. Complaints alleging just violations of Title VII (discrimination on the basis of sex, race, color, religion, and national origin) accounted for 31.4 percent of the complaints.

Retaliation claims are rising faster than any other category of complaint, up 10 points in the last decade. Race discrimination claims, historically the most frequent, were the second-most commonly received complaint by the EEOC. They’ve hovered around 36 percent for years and last year represented 35.4 percent of the total charges. keep reading…

Is your company among those who reject the unemployed because they are unemployed?

If you are — and a report from the National Employment Law Project suggests the list is longer than you might think — be careful. You’re walking a thin line between legal discrimination, and the kind that just might result in a disparate impact complaint from the EEOC.

At the behest of some 50 members of Congress, the U.S. Equal Employment Opportunity Commission held a day-long hearing on the matter several months ago. No formal statement has come out of the hearing, but the attention focused on the issue by the EEOC and Congress is raising concern among the employment bar. Labor lawyers are counseling employers to act carefully, avoiding blanket policies against hiring the unemployed.

Unless you are hiring in New Jersey, it is legal to include language in a job posting discouraging the unemployed from applying. In the Garden State, however, it became illegal on June 1 to discriminate against the unemployed in print or online ads. But everywhere, it’s bad PR to include the kind of wording that turned up in the now-infamous Sony Ericsson job posting.

Legal or not, employment lawyers at Foley & Lardner warned a few months ago that “employers can expect their hiring practices concerning the unemployed to be scrutinized.”

With an unemployment rate (in June) of 16.2 percent, twice that of whites, blacks could well be disproportionately impacted by a blanket “no unemployed” policy. Thus, said the Foley & Lardner lawyers, “The issue also seems ripe for a disparate impact test case, perhaps even one brought by the EEOC itself against an employer.” keep reading…

In case you were enjoying yourself over the holidays instead of reading my critically-acclaimed (OK, criticized) articles, my objective is to bring best practices to the HR forefront. Experience shows organizations that make informed hiring and promotion decisions (e.g., based on objective job-related tools) tend to have happier employees, are more successful, and reduce their potential for unfair hiring practice challenges.

That said, in case you might have missed Hiring the Kind of Salespeople You Only Dream About, I found John Zappe’s EEOC article a great companion. That is, if your organization routinely uses credit checking when hiring salespeople, you might want to know how the present Washington administration treats employers who don’t do their hiring homework. keep reading…

With the U.S. beginning its fourth year of a sour economy that is taking its toll on consumer credit scores, the EEOC signaled this week that it is taking a hard look at employers who use credit checks as a screening tool.

Kaplan Higher Education Corp. was sued Tuesday by the Equal Employment Opportunity Commission over its use of credit checks. The suit claims Kaplan denied jobs based on credit histories in such a way that it had a disparate impact on blacks.

The EEOC said Kaplan “engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.”

“This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity.” The types of jobs at issue weren’t disclosed.

A company spokeswoman denied the charge, saying background checks are conducted on all potential employees. Credit checks are part of the screening for jobs involving financial matters, including advising students on financial aid. keep reading…

As employers increasingly turn to RPOs they need to make sure the firm they hire is well grounded in fair hiring laws, because they could be held liable for the firm’s violations.

“It’s a good best practice to have,” counsels Christopher Olmsted, a specialist in labor and employment law and partner in the San Diego firm Barker, Olmsted & Barnier. Now, in the wake of a new federal appeals court decision, proper vetting is “even more important,” he says.

Last month, the 2nd District Court of Appeal based in New York, said an employer is liable for the misdeeds of its hiring agents, even if it considers them independent contractors.

Said the court: “We hold that an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.” keep reading…

When Jack Gross lost his title as claims administration vice president with FBL Financial Group Inc.’s Iowa Farm Bureau division he saw it as a demotion, even though he kept his salary and his responsibilities. Then he started receiving poorer job evaluations. Two years later, Gross was demoted and his job given to a younger woman.

He sued under the Age Discrimination in Employment Act, which,  like Title VII of the Civil Rights Act, prohibits discrimination, but which, unlike Title VII, hasn’t received the same attention from Congress over the years.

Gross won $47,000 from an Iowa jury. The verdict was upheld on appeal. But Thursday, in a historic employment decision, the U.S. Supreme Court overruled the lower courts in Gross v. FBL Financial Services, declaring that it is up to plaintiffs to prove age bias was the reason for an adverse action against them by an employer.

The court’s decision throws out a long-standing rule by which an employee could prevail on an age bias claim if they could prove age was a factor, even if it wasn’t the only one. Once the employee plaintiff established that with evidence, it was up to the employer to show a legitimate reason for taking the action it did.

These so-called “mixed motive” cases reflect such real-world situations as where layoffs fall disproportionally on older workers who tend to have higher pay than younger workers. In that kind of case, replacing older workers with younger ones may be one of multiple reasons considered by the employer. To make a bias case, however, a dismissed worker previously needed only to show that age discrimination was a part of the decision. That shifted the legal burden to the employer who then needed to show that the decision — in this example a layoff — would have been handled the same way regardless of worker age.

The Supreme Court ruling, written by Clarence Thomas and decided on a 5-4 vote, invalidates this two-step process — shifting the burden of proof — and places the entire burden of proof on the employee.

“The burden of persuasion does not shift to the employer even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Thomas writes in his decision. keep reading…

Here at ERE, we have a profound respect for the truthiness and recruiting insights of Stephen Colbert.

keep reading…

How are you doing with those New Year’s resolutions? We mean the work ones, not those “lose-weight-eat-healthy-get-more-exercise” ones.

If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.

Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.

This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.

Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.

“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.

So why should this prompt a new year’s review of hiring practices?

keep reading…