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.

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.

Plaintiffs who receive awards of either front pay or back pay through a Title VII claim will find that those awards are subject to income tax withholding. A recent decision from the United States Court of Appeals for the Second Circuit ruled that such awards may have taxes withheld from them, because they effectively constitute “Wages” within the meaning of the Internal Revenue Code.

In the case of Noel v. New York State Office of Mental Health, the Court of Appeals stated that: Both the back and front pay [awards to the plaintiff] were calculated with express reference to his employment relationship with the state and to all the wages and benefits that would have accrued absent the state’s unlawful discrimination. These amounts are “wages” because the constitute “remuneration” for services during an employee-employer relationship.”

The Court also noted that had the wages been earned in the course of employment, as opposed to being awarded as the result of a lawsuit, there would be no question that the same wages would be subject to withholding. The Court concluded that “[w]e believe that this result is not changed because [the plaintiff] had to obtain a judgment to secure the wages….”

If you need assistance with a wage claim, contact Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form to see if one of our experienced employment lawyers may be able to help you.

A decision by the United States Supreme Court in January opened the door to a broader interpretation of the anti-discrimination laws. In the case before the Court, a female employee filed a sex discrimination complaint with the Equal Employment Opportunity Commission and then three weeks later the company fired Mr. Thompson, who was her fiancé. The company lawyers argued that Title VII of the Civil Rights Act does not allow third parties to bring claims of retaliation but only the individual who themselves lodged the discrimination complaint. However, the Supreme Court of the United States in an 8-0 decision said that Mr. Thompson was protected by Title VII.

Thompson was not an accidental victim of the retaliation but, in effect, was collateral damage to the employer’s unlawful act. By terminating him they were retaliating against the female who had filed the charge and that was an unlawful act of punishment against her, although it was indirect. Mr. Thompson was in the “zone of interest” to be protected by Title VII and thus has standing to sue.

When does an office romance qualify as a close relationship? What if the couple had only been dating for a week or two? These are the issues left for future cases and future employers. It is a warning to employers to consider whether the person they are firing has a relationship to the complaining party such that it would be considered retaliation.

Douglas, Leonard & Garvey represents employees in discrimination and retaliation cases but we know that each case turns on its own unique and individual facts.