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Discrimination / Harassment

7 bills to watch: Congress’ 2010 employment law agenda

02/09/2010

When Republican Scott Brown of Massachusetts won January’s special election to fill the seat long occupied by the late Sen. Ted Kennedy, Democrats lost their 60-vote supermajority in the Senate. That means it will be that much more difficult for the Obama administration to make good on many of its pro-employee campaign promises. That’s not to say those employment law initiatives are dead. The following are the key initiatives pending in Congress.

Is it legally risky to refuse to hire people who have been arrested?

02/09/2010

Q. I am considering putting a policy in place to prohibit hiring any job applicant found to have an arrest record. Are there any legal risks?

Develop fail-safe application tracking system

02/09/2010

Do you have an employee who consistently applies for open positions for which she falls short on qualifications? You may be tempted to “lose” or “misplace” her applications. Be bigger than that. Instead, exercise patience and handle her applications just as you would for any other applicant.

Beware the high price of foul language: Expensive trials before unsympathetic judges

02/09/2010

It doesn’t happen often, but now the 11th Circuit has issued a rare unanimous en banc opinion. The judges, without a single dissent, ruled that a woman who quit her job because she couldn’t stand alleged daily sexual harassment can take her case to trial. The decision includes some important guidelines for what will be considered sexual harassment and what is simply crude and generally offensive behavior.

When picking candidates for promotion, use measurable criteria—and document it

02/09/2010

Employers have plenty of leeway when deciding which employees deserve to be promoted—as long as they document the decision-making process. Chances are a court won’t second-guess their choices. Just ask yourself this basic question: Have I passed over a candidate whom a reasonable person would have selected because his qualifications were superior to the person I picked?

Get legal help with termination agreements

02/09/2010

Call your attorney before offering a severance agreement! A federal trial court in Florida has allowed to go forward a disability discrimination lawsuit from a former employee who left under a negotiated termination agreement largely because the agreement was silent on why the employee was leaving.

Beware bias based on gender stereotyping

02/09/2010

While the federal Civil Rights Act contains no outright prohibition against discrimination based on sexual orientation, that doesn’t mean employers can get away with discriminating against employees who don’t fit society’s stereotypes about how men and women should look. Sex stereotyping may well be sex discrimination because it is based on notions of what is “feminine” and “masculine.”

First time hiring member of protected class? Have legitimate rationale before terminating

02/09/2010

When you hire someone, you have presumably concluded that the new employee has met at least the minimum requirements for job success. Of course, sometimes that turns out to be wrong. But think twice if you’re tempted to fire an employee who isn’t working out, and that person is your first-ever employee belonging to a particular protected class.

On the other hand, sometimes quick termination works, too

02/09/2010

Sometimes you realize early on that a recent hire is not going to work out. He may have looked good on paper, but isn’t doing well on the job. It may then be time to cut your losses.

Firm skids on ICE, eventually collides with EEOC

02/09/2010

Things started out rocky last November for American Building Maintenance (ABM), a nationwide janitorial services conglomerate, when ICE agents busted it for employing 1,200 undocumented workers. Bad turned to worse in January when the EEOC filed a complaint against ABM, alleging race discrimination against black workers hired last fall through a nonprofit Minneapolis employment agency called Emerge.