Are Pre-Employment Credit Checks Discriminatory?

April 14, 2014

Did you have to submit to a credit check when you applied for a job? Many employee advocates are pushing to have such practices banned as potential employment discrimination. As explained by one observer – “How can you pay your debt if you can’t get a job”? If your negative credit report is used against you, this will only further the cycle of unemployment. New York is the latest State to join the push, with legislation pending that would ban discrimination against applicants and employees based on their personal credit rating.

If you believe you have suffered any form of employment discrimination, you should immediately seek the advice of an experienced Georgia employee’s rights attorney to help you determine your next steps. A knowledgeable employee’s rights lawyer can advise you whether certain practices may be unlawful or discriminatory.

Many recent studies have found that credit checks keep valuable people from finding a job and have a discriminatory impact on people of color – particularly those whose credit histories have been damaged predatory lending that continues to target communities of color, as well as the enduring impact of racial discrimination in employment, lending, education and housing.

What is the law on pre-employment credit checks? The answer depends on a variety of factors. The EEOC provides “Inquiry into an applicant's current or past assets, liabilities, or credit rating, including bankruptcy or garnishment, refusal or cancellation of bonding, car ownership, rental or ownership of a house, length of residence at an address, charge accounts, furniture ownership, or bank accounts generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question.”

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Essential Functions of One’s Job Not Dependent Exclusively on Stated Job Requirements

April 7, 2014

The question of what constitutes an “essential function” of one’s job is a pivotal inquiry in many disability discrimination cases filed under Americans with Disabilities Act, as amended by the ADAAA Amendments Act of 2008 (“ADAAA”). Pursuant to the ADA/ADAAA, it is illegal for your employer to discriminate against “qualified individuals with a disability” in the terms and conditions of employment.

Qualified individuals are those who can perform the “essential functions” of the job in question. If you are a qualified individual with a disability, the ADA protects you in several ways. First, it requires that your employer make an effort to reasonably accommodate your disability. This means your employer must make a reasonable effort to help you do your job if, with such reasonable assistance you would be able to perform the “essential functions” of your job. As a result – determining just what are the essential functions of your job – is a critical question in many disability discrimination lawsuits.

In a recent Atlanta disability discrimination lawsuit, Jernigan v. Bellsouth Telecommunications, LLC , litigated by the team of experienced disability discrimination lawyers at The Buckley Law Firm, LLC, the US District Court for the Northern District of Georgia, Atlanta Division, analyzed the situation of a service technician who suffered a back injury that resulted in climbing and lifting restrictions, and specifically considered whether climbing and heavy lifting were “essential functions” of a service technician.

Relying on recent case law, Samson v. Federal Express, 2014 WL 1226847, the Northern District Court asserted that what is an essential function of your job does not necessarily depend upon the stated job qualification requirements but rather how you actually spend your time on the job. Thus, if a particular duty is a marginal part of a job, rather than a core function when viewed as a whole, it may not be considered “essential.”

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11th Circuit Remands Case to Determine What's an Essential Function Under The ADA

March 31, 2014

A recent disability discrimination case evaluated whether a Type 1 insulin-dependent diabetic man could maintain his claim for disability discrimination against Federal Express Corporation “FedEx” under the Americans with Disabilities Act (“ADA”) and its counterpart, the Florida Civil Rights Act. In Samson v. Federal Express Corporation, the 11th Circuit Court of Appeals determined that he could.

In 2009 FedEx offered the man, Richard Samson, an experienced vehicle mechanic, a job as a Senior Global Vehicle Technician at its airport facility in Fort Myers, Florida. The job was conditioned on Samson passing a Department of Transportation medical examination required for drivers who transport property or passengers in interstate commerce. Samson failing the medical examination due to his diabetic condition. As a result, FedEx withdrew his job offer. Samson subsequently sued, alleging disability discrimination, specifically claiming that FedEx was “imposing a requirement that [he] must obtain a [medical] care even though he would be a mechanic and not a commercial truck driver” and that “FedEx violated the ADA [and the FCRA}, which prohibit[] an employer from using qualification standards that screen out people with disabilities.

The ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment. The ADA also prohibits disability harassment and retaliation against you for complaining about disability discrimination or for participating in someone else’s disability discrimination case.

The 11th Circuit Court of Appeals determined that a reasonable jury could find that FedEx discriminated against Samson by withdrawing his job offer based on his medical condition.

Additional facts revealed that on March 10, 2009 after an interview, FedEx sent Samson – the best candidate – a letter offering him the Technician position. During the DOT examination the following day, Samson disclosed that he is Type-1 insulin-dependent diabetic. Insulin-dependent diabetics are automatically disqualified from being medically certified as physically qualified to operate a commercial motor vehicle in interstate commerce under Florida law absent an exemption. Two days later, FedEx sent Samson a letter withdrawing his job offer solely because he failed the medical examination. FedEx then hired the second best candidate for the position.

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Pressure Increases To Pass ENDA

March 27, 2014

In a call for legislators to pass the Employment Non-discrimination Act (ENDA), Vice President Biden called employers’ ability in some states to fire employees because of their sexuality “barbaric” and “bizarre” during a keynote address at the Human Rights Campaign Gala dinner Saturday.

“Hate can never be defended because it’s a so-called cultural norm,” he said. “I’ve had it up to here with cultural norms.” He called on Congress to pass the Employment Non-Discrimination Act, or ENDA, which would outlaw discrimination by most private employers against people because of their sexual orientation or gender identity.

If you believe you have been discriminated against based on your sexual orientation it is critical you consult with an experienced Georgia employment discrimination law firm right away.

If ENDA passes, it would join other anti-discrimination laws such as title VII of the Civil Rights Act of 1964, which makes its illegal to discriminate against employees, former employees and applicants for employment on on the basis of gender, race, national origin or religion. Since the passage of Title VII, Congress has passed additional laws to expand the scope of the anti-discrimination laws in order to prohibit other forms of discrimination. The Americans with Disabilities Act prohibits disability discrimination, and the Age Discrimination in Employment Act protects individuals over the age of 40 from discrimination.

Similarly, (ENDA) would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees.

These comments come just days after Congress sent a letter to President Obama calling on him to sign an executive order banning federal contractors from discriminating against LGBT workers. President Obama has said that he would prefer that a law be passed outlawing LGBT discrimination, but is now under increasing pressure to pass such an important law via executive order.

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Do You Know The Facts About Religious Discrimination?

March 21, 2014

The federal government has just released new documents meant to help employees who may have questions concerning employment discrimination – specifically religious discrimination in the work place. These articles are meant to provide general guidance. However, if you believe that have suffered any form of discrimination, it is always a good idea to consult with a dedicated Georgia employment discrimination attorney right away.

The first document is an Equal Employment Opportunity Commission (EEOC) fact sheet. This sheet sets forth basic information concerning workplace rights and responsibilities regarding religious dress and grooming under Title VII of the 1964 Civil Rights Act.

For example, your workplace has an obligation to reasonably accommodate your religious practices unless doing so would cause an “undue hardship” to an employer’s business. In some situations an employee’s religious dress or grooming hasn’t been allowed where it violates certain workplace security, safety or health concerns. However, the employer must prove the practice actually poses an undue hardship on its business operations. Recently, a record setting religious discrimination jury verdict was awarded to a Muslim man who suffered illegal religious discrimination based in part on his refusal to shave his beard, which is part of his religion and culture.

Additionally, the EEOC issued a question and answer document further noting that an employer may not segregate employees based on religion, permit harassment of employees based on religion or retaliate against an employee who requests a religious accommodation or engages in other protected activity under Title VII.

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Muslim Man Wins Religious Discrimination Verdict

March 14, 2014

Recently, a jury awarded a Muslim man $1.1 million in an employment and religious discrimination case. This represents one of the largest employment law verdicts for a Muslim American. According to the lawsuit, the man came to the United States from Tunisia a little over 20 years ago seeking the “American Dream.” However, he alleged that while employed as a maintenance worker for the Washtenaw County, he was denied promotions and eventually wrongfully terminated. As the result of the unlawful termination, he was unable to find another job and lost everything.

According to the lawsuit the “The man lost his house, he was literally homeless, and he lost his family and his wife of 26 years. He was destitute.”

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination. This means that it is illegal to take any negative employment action against an employee – or potential employee – as the result of the race or religion, including hiring, firing or failing to promote. If you have questions about employment discrimination or believe that you may have been subjected to unlawful discrimination or bias at work, it is a good idea to consult with a skilled Atlanta religious discrimination lawyer right away.

Here the man alleged that he was fired partially because of his beard – a religious mark of manhood.

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Amazing Race Contestants File Employment Discrimination Lawsuit

March 7, 2014

News reports that two former contestants on the Amazing Race have filed an employment discrimination lawsuit alleging that they were not hired due to their race and religion.

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in terms of employment of the basis of an individual’s race, color, sex, national origin or religion. Congress has also enacted the Americans with Disabilities Act to prohibit disability discrimination and the Age Discrimination in Employment Act.

Illegal discriminatory actions may include a wide variety of employment actions such firing, not promoting or not hiring someone based on one of the one of these prohibited categories.

If you have questions about employment discrimination or believe that you have been treated improperly at your place of work based on your race or religion, it is important to consult with an experienced Atlanta race discrimination lawyer right away.

In the recent employment discrimination lawsuit, the former contestants Idries and Jamil Abdur-Rahman, who are Muslim African-Americans who practice Islam, worked as independent contractors at the OSF Saint Elizabeth Hospital in Illinois, while also maintaining their own private practices. The brothers applied to become employed by the hospital, and as part of the employment process, they were asked to sign an agreement stating that they would adhere to the “Ethical and Religious Directives for Catholic Health Care Services” if they were to be hired.

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Iraq Veteran Excluded from Hiring List May Have USERRA Claim

March 2, 2014

Individuals who sign up for the military are prepared to make significant sacrifices to defend our country. However, losing your job or being denied an employment opportunity as the result of your dedication should not be one of them. National guard member and members in the reserves face particular difficulties since they are typically called up at a moments notice. In order to protect military service members Congress enacted federal law – the Uniformed Services Employment and Reemployment Rights Act (USERRA) – that specifically provides that military personnel must be able to return to their jobs when they come back from service. USERRA also makes it illegal to discriminate based on an employee – or prospective employee’s – military service.

If you are in the military and have questions about your employment rights, it’s a good idea to consult with an experienced Georgia USERRA lawyer right away.

A recent case looked at the application of this law in real life – specifically whether a National Guard member had a reinstatement claim. In Dorris v. TXD Services, the Guard returned from active duty in Iraq to find that his employer had sold the business in his absence, but failed to include his name on the employee list to the new owner.

The court looked at whether this set of facts is enough to support a military services discrimination act complaint. It determined that while the worker might not have a claim against his employer who was no longer in business and didn’t employ anyone, he might have a claim based on the company’s failure to include his name on a list of current employees that it supplied in February 2008—while he was in Iraq—to the new company that purchased the business and hired the former employees to continue drilling. Further, whether the guard “quit” to go on active military duty, or was fired for being on duty, didn’t matter.

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Is Attendance An Essential Function of Your Job?

February 23, 2014

If you take a leave of absence from work because of a disability, do you know if you are entitled to return to your job? Your employment rights depend on a variety of factors, so it is always important to check with an experienced Atlanta employment attorney if you have any questions about your rights under the law.

A recent case looked at the United Parcel Service Inc.'s policy of discharging employees who can't return to work after 12 months of leave, and determined that this policy may be unlawful under the Americans with Disability Act (ADA) or the Americans with Disability Act Amendments Act (ADAAA). The policy in question allegedly provided that “attendance” was an essential job requirement, an illegal provision under the ADA/ADAAA.

The Facts

In EEOC v. UPS, Inc., the U.S. District Court for the Northern District of Illinois looked at arguments surrounding UPS’s requirement that workers to return to work after 12 months. In this instance, the lawsuit alleged that the company had policy of terminating injured employees following year long leaves of absence, without providing reasonable accommodations for their disabilities, This policy raised the question is being healthy enough to work (100% healed in this situation) a medical requirement or a function of the job? If the requirement is based on your health, then it may be discriminatory because it screens out – or tends to screen out – individuals with disabilities. As explained by the court – “The twelve-month policy can be considered a qualification standard— [and improper] if attendance is a medical requirement that an individual must meet in order to maintain his or her position with UPS—and not an essential job function.”

The issue arose after a worker who joined UPS in 1990, took a 12-month leave of absence in February 2006 after she began experiencing symptoms of multiple sclerosis. She returned to work briefly, but then experienced additional medical issues and requested additional time off. However, UPS allegedly failed to make efforts to reasonably accommodate her request.

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A Claim For Retaliation May Exist Where A Friend Is Fired

February 16, 2014

While most people are aware that it is illegal to discriminate on the basis of sex, race or religion, many people do not realize that it is also against the law to retaliate against someone who makes such claims. This is true even if a court doesn’t find that discrimination occurred. If you are subjected to negative employment action as the result of your complaints of work place discrimination, you may be able to sustain a claim for retaliation.

In fact, it may be easier to bring a successful retaliation lawsuit in certain circumstances than it is to prove discrimination. This is precisely because in order to make employment laws effective, employees can’t be afraid to come forward when discrimination occurs.

If you have questions about retaliation or any form of employment discrimination, it is a good idea to consult with a top Atlanta employment discrimination attorney right away. Retaliation means that you complained about discriminatory conduct in the workplace--either discrimination directed at you or someone else in the workplace, and you are retaliated against as a result.

Retaliation doesn't mean simply that you were discharged for making a complaint. It means almost any negative action by your employer against you (or even against a family member or friend) in response to your complaint about discrimination, or for participating as a witness in someone else's discrimination case. The U.S. Supreme Court has recently defined retaliation quite broadly, to include any conduct by an employer that would tend to deter reasonable people from pursuing their rights.

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Passing ENDA and the Pay Check Fairness Act Would Benefit Workers

February 7, 2014

In President Obama’s 2014 State of the Union address, he set forth an agenda promising to make 2014 a year of action. He also expressed his commitment to civil liberties and civil rights. Included in his goals was pay equity for women and economic security for families.

One of the changes many advocates seek is passage of the Employment Non Discrimination Act and Paycheck Fairness Act. Passing these laws would provide much needed legislative support to female and LGBT workers.

These laws would help all Americans earn the wages they deserve. If you believe you may have faced discrimination at work, consulting with a dedicated Atlanta discrimination attorney right away is critical to protect your rights.

EDNA is legislation proposed in the United States Congress that seeks to end discrimination in hiring and employment on the basis of sexual orientation or gender identity and would make such discrimination illegal.

EDNA would prohibit an employer from refusing to hire, fire, or take any other adverse action against a worker based on actual or perceived sexual orientation or gender identity. Similar restrictions also would extend to employment agencies and labor organizations.

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Age Discrimination Cases On The Rise

January 31, 2014

While most people are familiar with laws that make it illegal to be fired based on your race, gender, religion or even age, they may not realize that the failure to hire for these reasons may also be considered employment discrimination. A recent article in Forbes highlighted focused on “age discrimination” and the difficulty proving that you were not hired based on an improper rationale.

Like the other anti-discrimination laws, the ADEA prohibits any type of adverse action against you because of your age, including the failure to hire you or a discharge because of your age. It applies to employees over 40 and age discrimination is considered to include discrimination in any phase of employment. This may include anything from where and how jobs are posted, job descriptions, who is granted an interview, who is hired, what salary a person receives and any merit increases, job assignments, performance management and evaluation, disciplinary actions, promotions, demotions, benefits, employment termination, and layoffs.

Further, if your employer takes any action that adversely affects a disproportionate number of employees over 40 is also age discrimination. If you have questions about age discrimination or believe that you have been discriminated against, it is important to consult with a top Georgia employment discrimination lawyer right away.

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