An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

capitoldasIt’s a challenge for employers to keep up with changes to employment laws. What’s the current status? What do I need to change?

So, here are four quick things you can look at right now to ensure that you are up to compliance in Connecticut.

  1. Connecticut increased the minimum wage effective January 1, 2017.  It’s now up to $10.10 per hour. Are all your employees now at that minimum wage?
  2. Connecticut’s new Fair Change Employment Law went into effect January 1, 2017.  That means that most employers are not allowed to ask about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless the employer is required to do so by state or federal law, or a bond is required for the position for which the applicant is seeking.  When did you last update your employment application? 
  3. Last summer, Connecticut updated it’s state family & medical leave law to mirror federal FMLA law that allows an employee to take a leave for a “qualifying exigency”.  Recall too that Connecticut allows employees to take leave in order to serve as an organ or bone marrow donor. When did you last update your FMLA policy?
  4. Effective October 1, 2016, employers may now offer the use of payroll cards to deliver wages so long as the employee “voluntary and express authorizes” the payment of wages by that method and the employer provides a “clear and conspicuous notice” to employees about the use of it.  Have you updated your notices and have your received authorizations from your employees on the use of payroll cards?

 

rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

Earlier this week, I offered some initial thoughts about the new GINA regulations that will become effective in January 2011. After time this week to digest the regulations and review the analysis of others, here is the bottom line for employers in Connecticut.

  • These regulations — as with GINA itself — apply only to employers with 15 or more employees. Employers under that size in Connecticut must still comply with the state obligations not to discriminate based on genetic information.
     
  • If there is one thing that all employers should know is that the new regulations provide a safe harbor of sorts to employers who inadvertently received genetic information when that information was not sought.  Therefore, the EEOC strongly suggests that the following model language be used on any requests for medical information

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

As Brian Hall notes in his blog, its a mouthful and it’s possible that an employer could use less language, but why? The EEOC has given its blessing to this language. But as Hall notes, does this language need to be used in all workers compensation proceedings or independent medical exams conducted through that process? That remains an open question.

So where should you be adding this language? To FMLA certification forms, for one.  But doing that can even lead to confusion as noted in the FMLA Insights blog. 

Unfortunately, when it comes to FMLA leave for a family member, simply inserting the above language into a certification form may be misleading. … GINA includes an additional exception that allows employers to ask for "family medical history" to comply with the FMLA. Consequently, when seeking leave for a family member’s serious health condition, it may be necessary to modify the language above to make it clear that "family medical history" IS required, at least to the extent necessary to make the medical certification complete and sufficient under the FMLA.

  • Employers who use standard FMLA forms from the Department of Labor may therefore want to consider adding the language in an addendum or attachment to each form. Other forms, such as for pre-employment medical examinations may similarly need to be modified.
     
  • What else do you need to know? Be careful searching the Internet looking for information on employees.  As I noted in a prior post, employers may not “request, require or purchase genetic information of an individual or family member of the individual,” with rare exceptions. 

    Internet searches “likely to result in [an employer] obtaining genetic information” are covered. But inadvertent discovery of genetic information likely isn’t enough.  So if you Google an applicant’s name for legitimate job related purposes and stumble on the information, that’s probably not covered.  Similarly if you already have access to someone’s social networking page by being their "friend" and inadvertently stumble onto genetic information, that too isn’t covered. But if you’re looking for genetic information, that’s forbidden.

The best summary of the regulations I’ve seen so far has been posted here. But the bottom line is that employers need to take the next 60 days to educate their staff about the new regulations.  Even employers in Connecticut that have long dealt with the prohibitions, need to adapt and respond to these new regulations. 

I’m often asked how I have the time to keep up the blogging and new developments in the law. Part of it is an exercise in information management.

But there’s a new tool that was just officially announced this morning that should make this exercise easier for everyone.

Most people are now familiar with LinkedIn – a social networking tool that mainly focuses on businesses and business connections. One of the complaints of LinkedIn in the past has been that there isn’t that much to do with it other than post resumes and look for jobs. That has been changing recently as more applications like Slideshare and TripIt allow users to communicate easier and share content.

JD Supra has been around for a while (and founded by UConn Law Grad Aviva Cuyler) and allows law firms and attorneys to post content for others to view. But what it has lacked thus far is an easier way to distribute and share that content to a broader audience. 

Until now. This morning, JD Supra and LinkedIn launched a new application that makes both sites much better.

With this new LinkedIn application, users of LinkedIn can follow content easily from their connections and others.  For more information, you can check out this informative post and YouTube video here. 

I’m already seeing the utility of it not only for myself but others in the labor & employment law area. I got a sneak peek about this last month and the features I like are the ability to follow content in a particular subject matter. Thus, if you have an interest in, say, labor & employment matters, you just need to click the option in the application to receive updates in that area.

I’ve started to post a few articles and links on my LinkedIn page and expect to add more over the upcoming weeks.  Let me know what you think and whether there is particular content you’d like to see.  I anticipate being able to use this site as a way to supplement the blog. 

Most importantly, you do not need to be an attorney to appreciate this content. And no special technical training is needed; just point and click. 

And if we haven’t already connected on LinkedIn, be sure to drop me an invitation here.  You can then follow my content on JD Supra. 

Have you used this application yet? What do you think? What content would you like to see on this site?