By C. Kevin Leonard – New Hampshire Employment Attorney

Recently, the U.S. Equal Employment Opportunity Commission issued its enforcement guidance on an employer’s use of arrest and criminal records: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

There are two ways in which an employer’s use of criminal history information may violate Title VII of the Civil Rights Act of 1964. First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin (“disparate treatment discrimination”). Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Title VII does not prohibit employers from obtaining criminal background reports about job applicants or employees. Title VII does not regulate the acquisition of criminal history information. However, another federal law, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA), does establish several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies. In addition, some state laws provide protections to individuals related to criminal history inquiries by employers.

In its Guidance, the Commission considered several things:

• The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct. However, an employer may act based on evidence of conduct that disqualifies an individual for a particular position.

• Convictions are considered reliable evidence that the underlying criminal conduct occurred.

• A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.

If you believe you are the victim of wrongful employment action, you should consult an experienced Concord employment lawyer such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

In an employment case, like many cases, a witness’ credibility is important to winning a case. Your supervisor, or a co-employee, makes an obnoxious sexual comment to you or makes some statement indicating hostility toward you based on your medical condition, your race or your national origin.

If you are forced to litigate an employment discrimination claim against your employer, how likely do you think it is that anyone other than you is going to remember the comment 1-2 years after it was made, when witnesses in your cases (including the speaker of the discriminatory comment) are being interviewed (or deposed) in preparation for trial?

The answer is: unlikely. Memories fade. Moreover, speakers of discriminatory comments have no incentive to remember saying them. Witnesses who continue to draw their paychecks from the employer who discriminated against you likewise often do not wish to be perceived as “testifying against” their employer. It is much easier for such witnesses to say, “I don’t recall.”

For these reasons, employment discrimination cases frequently turn into credibility contests. Does the jury believe you, or does it believe the employer’s witnesses?

Your credibility will be enhanced if you just do a couple of things when you are being subjected to the discriminatory acts or comments.

1. Tell your friends and family. If you can produce witnesses who will testify that you reported the discriminatory acts or comments to them at the time you were being subjected to them, such testimony makes you more credible.

2. Keep contemporaneous notes describing the acts or comments. If you can produce a note that you made at the time of the act or comment describing what was said or done and by whom, such documents will make you more believable to a jury than a witness who simply denies that the act or comment ever occurred or states that he or she “doesn’t recall.”

If you believe you are the subject of employment discrimination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

Two recent New Hampshire courts reaffirm the right to bring a a constructive discharge claim under New Hampshire law.

In Jeffery v. City of Nashua, the New Hampshire Supreme Court held that to establish a constructive discharge, a plaintiff “must show that her employer rendered her working conditions so difficult and intolerable that a reasonable person would feel forced to resign.”

The next case was Gavin v. Liberty Mutual, decided by the United States District Court for the District of New Hampshire. The Court explained that a constructive discharge is an element of a wrongful termination claim.

In New Hampshire, to prevail on a claim for wrongful termination, or wrongful discharge, as the cause of action is also known, a plaintiff must establish that: (1) the termination was motivated by bad faith, retaliation or malice; and (2) that the employee was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn. So, the first prong focuses on the nature of the employer’s actions, while the public policy prong pertains to the employee’s acts.

If you believe you are the subject of wrongful termination or wrongful discharge, you should consult an experienced New Hampshire employment attorney at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online Contact Form.

By Charles G. Douglas – Concord, New Hampshire Employment Law Attorney

One of the issues that have come up in recent years involves Title VII discrimination claims and whether a union collective bargaining agreement or CBA prevents such a discrimination claim from being brought in court. That generally provide a grievance procedure for union employees covered by the CBA. In a recent case out of the Fifth Circuit Court of Appeals, a Hispanic employee had filed a sex discrimination case with the Equal Employment Opportunity Commission against her employer, UPS. UPS moved to dismiss the case because it claimed she should have “grieved” it under the CBA her union had with UPS.

The Federal Appeals Court found that the employee had separate statutory and contractual rights and that, in submitting a grievance to arbitration, the employee seeks to vindicate the contractual rights under the CBA. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights created by Congress. The bottom line is that in the absence of a crystal clear CBA provision that mandates employees to go through the grievance procedure for their federal statutory rights there are parallel lines that don’t cross in terms of remedies.

While there are some conflicting opinions in this area it is generally the law that disputes regarding the construction of the CBA contract are handled through grievances and arbitration but that structure is not sufficient to waive an employee’s right to go court to decide their statutory Title VII claims.

If you believe you have been discriminated against, please contact one of our attorneys at 1-800-240-1988 or complete our online contact form.