To Hire or Not to Hire – That is the Question

Post by Michael M. Berzowski

Although there is no federal law that directly prohibits employment discrimination based upon criminal records, the EEOC and some courts are of the view that discrimination based upon a criminal record can be a form of race discrimination and a violation of Title X of the Civil Rights Act of 1964 since some racial groups are convicted in numbers that are disproportionate to other groups and, therefore, the argument goes: barring people from employment based on their conviction records will have a disproportionate impact on people of color.

This is not an academic subject. According to the US Department of Justice, there are more than 64 million Americans who have a criminal record that might or might not have resulted in a conviction. The chances are greater than not that you will come across such an individual. The trick will be to adhere to various standards in considering hiring people with criminal records which should provide a balance in maintaining a level of safety at work and hiring competent and talented employees who might not otherwise have had employment opportunities.

A safe approach is to determine whether there is a reasonable and direct relationship between the crime and the job with a direct correlation not being a good match. Similarly, it would be a good idea to be on guard for all violent crimes, regardless of the circumstances since someone prone to assault and battery or reckless driving or negligence charges, for example, might not differentiate between work and non-work environments.

Finally, you should consider how much time has passed between the conviction and the date of the work application, as well as any rehabilitation that may have taken place and the applicant’s previous work history.

If you have a rule that automatically discards any applicant with a criminal record, now would be a good time to consider changing it.

The Key To Access

Post by Michael M. Berzowski

Notwithstanding increasing efforts for diversification, individuality and like approaches, the simple fact of the matter is that we are becoming more and more alike, particularly in reliance on computers, the internet, online transactions and on and on. Related to that is the proliferation of account numbers for credit cards, investment accounts, social and business memberships, health and other insurance as well as other purposes. In most instances there will be blocks to access, such as user names and passwords, key questions, the answers to which you may have forgotten and so on.

My strong recommendation is that you immediately take the time to list all of your accounts and user and passwords and other required information. Once you have compiled your list, you should make its location known to someone you trust. In the event of your unavailability or incapacitation (or worse yet, death), you will have performed an invaluable service that will allow your spouse or your appointed agents to do their job with a minimum amount of aggravation.

And, while you are in the process of arranging your affairs, you might consider opening your desk or kitchen drawer and identifying and labeling the keys that you have been accumulating so that people are not at a loss when trying to determine exactly what those keys are for. Maybe some of them should be tossed – why continue the mystery?

U.S. Supreme Court Clarifies Evidence Required in Federal Retaliation Cases

Post by Anna M. Pepelnjak

The U. S. Supreme Court recently issued an important decision regarding the proof required for employees who assert federal retaliation claims under Title VII. In University of Texas Southwestern Medical Center v. Nassar (decided June 24, 2013), the Court held that Title VII retaliation plaintiffs must prove that their protected activity was a “but-for” cause of the adverse employment action suffered by the employee (not just a “motivating factor”).

The Nassar case involved a teaching hospital that withdrew a contract offer from the plaintiff doctor. Dr. Nassar had accused one of his supervisors of religious and national origin discrimination and then accused another supervisor of retaliation after the offer was withdrawn. Nassar was largely successful at the trial court and appellate level, but the employer appealed the case to the U. S. Supreme Court. On a 5-4 split, the Court (Justice Kennedy) ruled that Title VII provides a different standard of proof for “status-based” discrimination claims than for retaliation claims. For status-based claims (race, color, religion, sex, or national origin) the plaintiff need only show that discrimination was a motivating factor in the employer’s decision, possibly one of many such factors. For retaliation claims, however, the Nassar decision requires successful employees to show that, were it not for an intent to get even or retaliate, the employer would not have taken the action. In other words, the plaintiff must prove that the employer had no other reason for its decision, save retaliation.

This decision brings the standard of proof for retaliation claims in line with age discrimination claims. In a 2009 case, Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343 (2009), the Court had held that a plaintiff suing under the Age Discrimination in Employment Act must prove that age was the “but-for” cause of the adverse employment action. According to the Nassar court, the language of the retaliation statute mandated the same result. Both of these decisions are a boon to employers, since proof of another motivation will doom the employee’s case.  Relying on these cases, employers may be able to obtain quick, favorable decisions dismissing claims at the summary judgment stage.

Supreme Court Issues Decision Favorable To Employers In Harassment Cases

Post by Thomas L. Skalmoski

In the recently decided case of Vance v. Ball State University, the Supreme Court of the United States clarified the standard for an employer’s liability for harassment by a co-worker and made it more difficult for employees to prove hostile work environment claims by adopting a narrow definition of a “supervisor.”

Vance, an African-American woman, worked for Ball State University. She complained that she had been subjected to a racially hostile work environment because of a co-worker’s offensive conduct that included the use of racial epithets, racial taunts and veiled threats of physical harm. Although the co-worker had the authority to direct some of Vance’s daily work assignments, the co-worker did not have the power to hire, fire, demote, transfer or discipline Vance.

The question before the Supreme Court was whether Ball State was liable for the co-worker’s harassment under Title VII. The standard for determining an employer’s liability for a co-worker’s harassment depends on the status of the co-worker and, specifically, whether the co-worker is a supervisor. Harassment by co-workers differs from harassment by supervisors. It is generally easier for an employee to prove that the employer is liable for a co-worker’s harassment if the harassing co-worker is a supervisor because the employee does not have the burden of showing that the employer was at fault. When the harasser is a co-worker, the employee must prove that the employer was negligent in permitting the harassment. This often requires the employee to prove that the employer had knowledge of the co-worker’s harassment. In the case of harassment by a relatively low-level employee, that proof can be difficult.

Because an employer’s liability depends ultimately on whether the harasser is a supervisor or a mere co-worker, the Supreme Court in Vance had to decide what it means to be a supervisor and, specifically, what degree of authority an employee must have in order to be classified as a supervisor. The Court rejected a broad, pro-employee standard that a supervisor is any co-worker who has the ability to exercise significant discretion over another employee’s daily work, such as making work assignments or leading or directing tasks. Instead, the Court adopted a narrow, pro-employer standard. It held that in order for a co-worker to be a supervisor for purposes of hostile work environment claims, the co-worker must be “empowered by the employer to take tangible employment actions against the victim” including the power to hire, fire, demote, promote, transfer or discipline the employee. Because Vance’s harassing co-worker did not have this power, the co-worker was not Vance’s supervisor and Ball State was not automatically liable for the co-worker’s harassment.

By narrowly defining what it means to be a supervisor in Title VII harassment cases, the Court has protected employers from being liable for the harassing conduct of relatively low-level employees unless the employer has been negligent by not taking reasonable steps to discover and correct workplace harassment.


The comments and opinions expressed in this blog are intended for informational purposes only and do not constitute legal advice. Reading or using the information in this blog does not create the existence of an attorney-client privilege. Due to the changing nature of the law, the blog posts may contain dated material. For an update on the current law and the application of the law to your particular facts and circumstances, consult a legal advisor. The information contained herein is not a substitute for obtaining legal advice from a qualified attorney licensed in your state.