In an effort to keep our clients updated on changes in the law, below is a summary of recent court decisions which may impact your business. Each case addresses evolving responsibilities and accountability of employers.
- In April, the EEOC issued guidance concerning the use of background checks to reject applicants with a criminal record. The EEOC believes that use of such records does not violate Title VII if the policy or practice is job related for the position in question and is consistent with business necessity. To avoid potential Title VII liability, the employer must show an effective link between the specific criminal conduct, and its dangers, and the risks inherent in the duties of the particular job. If you use conviction records as part of your hiring criteria, you will want to tread carefully to avoid Title VII claims. (EEOC Enforcement Guidance)
- In a decision handed down from the Supreme Court in June the definition of “supervisor” has been narrowed relating to Title VII (discrimination based on race, color, religion, sex, or national origin) claims. Now, to be a “supervisor,” a person must have the power to take tangible employment actions against the employee, such as hiring, firing, or some other action causing a significant change in employment status. Pragmatically, this new definition reduces the number of “supervisors” and increases the employee's burden of proof in order to hold the employer liable in Title VII discrimination cases. (Vance v. Ball State University)
- Another recent Supreme Court ruling applies to Title VII retaliation claims. This decision requires employees to prove that unlawful retaliation would not have occurred “but-for” the employer's alleged wrongful action. In other words, the unlawful retaliation was the sole cause of the employer's adverse action, or the determining motive. Justice Kennedy wrote, “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Some fear this greater burden of proof will stifle employees' claims, while others herald it for reining in excessive retaliation claims. (University of Texas Southwestern Medical Center v. Nassar)
- In late June, the Supreme Court ruled that class action waivers in all arbitration agreements are valid and enforceable so long as the filing fees do not preclude or deter individuals from initiating arbitration proceedings in the first place. By holding that its ruling applies to all arbitration agreements, the Supreme Court tacitly included those used by employers to resolve employment disputes. The Supreme Court expressly found that arbitration agreements are contracts that should be “rigorously enforce[d] according to their terms.” An unresolved issue, however, is whether the Supreme Court would uphold a class action arbitration waiver in the context of the NLRA. In other words, it remains to be seen if the Supreme Court would allow the use of class action arbitration waivers to prevent employees from engaging in protected concerted activities. Stay tuned. (American Express Co. v. Italian Colors Restaurant)
Every situation and/or matter is specific and unique. If you have questions, or need help creating or modifying your procedures or policies in light of these recent decisions, please contact an attorney at Farhang & Medcoff. We have a distinguished history of advising and representing clients in a wide range of transactions and disputes. Because our clients' needs come first, we focus on preventive counseling, objective advice, and guiding our clients toward strategies that mitigate risk while efficiently and effectively conducting business in a legally compliant manner.