Reporter Sarah Tressler covered high society and fashion for the Houston Chronicle. She also worked as an exotic dancer on a part-time basis. According to Tressler, she worked as a stripper only "rarely" and did it for the "exercise" since she "didn't have a gym membership." So she must have been surprised when her "workouts" got her fired from her day job.

The Chronicle told her that she was being terminated for failing to disclose her side job on her employment application, according to MSNBC.

But Tressler ain't buying it. She hired celebrity lawyer Gloria Allred, who has filed a charge of discrimination on Tressler's behalf with the EEOC. The charge alleges that the termination constitutes gender discrimination.

"Most exotic dancers are female, and therefore to terminate an employee because they had previously been an exotic dancer would have an adverse impact on women, since it is a female-dominated occupation," Allred said.

And she may just have a point. If Tressler was fired because she worked part-time as an exotic dancer and she can show that male reporters who failed to disclose their part-time employment on their job applications, it may be a viable claim. On the other hand, journalists usually are subject to strict workplace policies. Newspapers and other traditional media outlets impose high standards on their reporters and, if the paper enforced those rules consistently, it may have a solid defense. Either way, it makes for a good story.

For more employment-law stories involving this profession, check out my prior post, Strip Clubs: One Social Event Not to Include In a Summer-Intern Program. If that doesn't satiate the interest, Dan Schwartz at the Connecticut Employment Law Blog has you covered.

An employee who sues his employer for discrimination almost always believes that his protected characterstic was the real reason behind a negative outcome, such as termination, discipline, etc.. A new decision from the U.S. District Court in Delaware reminds us that an employee's subjective belief regarding discriminatory motive is not sufficient to establish liability against an employer. This decision likely won't stop employees from filing lawsuits but it should provide some reassurance to employers who make carefully considered and well-documented employment decisions.

Facing Facts
The case of Luta v. Delaware Department of Health and Social Services was brought by a black, Kenyan employee of DHSS, who had been denied several promotions. Ms. Luta had been employed with the agency for 5 years when she applied for three internal promotions. She was considered qualified for each position and was placed on a list of eligible candidates.

Two of the positions remained unfilled because the manager was not satisifed with any of the eligible candidates. Instead, two women continued to perform the duties of those positions in a temporary capacity. The third position was awarded to a white male with signficant experience.

Mr. Kennedy had 20 years' experience in the Air Force's Medical Service Corps, but had limited experience with HIV/AIDS.

In issuing its decision, the Court focused primarily on the third position, HIV/AIDS Coordinator. In support of her claim for unlawful failure to promote, Ms. Luta relied argued that she had more experience treating and researching HIV/AIDS diseases than the individual who had been awarded the position. Ms. Luta claimed that she had been told by an HR manager that HIV/AIDS experience was "essential" to the position. By contrast, DHSS argued that management experience was the key skill desired in candidates and, in that regard, the individual selected had far more experience than Ms. Luta.

The Court concluded that Ms. Luta had failed to meet her burden in presenting evidence of discrimination. The Court noted that the human resources manager with whom Luta spoke was not authorized or qualified to elaborate upon the skills required to perform medical positions. The statements of medical professionals responsible for making the hiring decision were given more weight, and supported the contention that management experience was more important that knowledge of HIV/AIDS. The Court also noted that, contrary to Ms. Luta's assertions, the successful candidate did have experience with HIV/AIDS diseases, albeit more limited than her experience. In addition, the comparator was the more desirable candidate because of his extensive management experience.

Setting aside their relative qualifications, however, the Court emphasized that Ms. Luta needed to present some evidence of discrimination. "A reasonable factfinder could not conclude, based solely on the fact that a white man with more managerial experience was hired over a black Kenyan woman with arguably more HIV/AIDS experience . . ., that racial and national origin discrimination had occurred." Based on this conclusion, the Court dismissed Ms. Luta's claims.

This decision represents a beacon of hope for Delaware employers in that it goes to show that a lawsuit will not succeed without some evidence of discrimination other than "I believe" coming from the plaintiff-employee.

Many employers continued to face financial challenges in 2011. But business is booming for at least one group. The EEOC received a record number of complaints last year--almost 100,000 in all.

Almost half (40%) of the complaints alleged unlawful retaliation, making it the most "popular" type of claim. Race- and sex-discrimination claims ranked second and third highest.

The newest law on the EEOC's enforcement task list is GINA, the Genetic Nondiscrimination Act. As expected, there were few GINA complaints filed--only 245 in 2011.

There could be any number of reasons for the increasing amount of discrimination complaints filed with the EEOC. Unfortunately, though, it doesn't seem that this trend is likely to slow any time soon.

In Meditz v. City of Newark (PDF), the Third Circuit concluded that the City of Newark, New Jersey’s residency requirement may have unlawful disparate impact on non-Hispanic white applicants.  The case was brought Gregory Meditz, an attorney acting pro se.  Meditz alleged that the City’s residency requirement disparately impacted white, non-Hispanics and, as a result, white, non-Hispanics were under-represented in the City’s workforce.

Meditz, a white male, applied for a job as an Analyst with the City of Newark, New Jersey.  He was rejected for the job because he lived in Rutherford, New Jersey and a City ordinance required that non-uniformed employees live within City limits.  Meditz filed suit, alleging that the City’s residency requirement negatively impacted the hiring of white, non-Hispanics.

In support of his suit, Meditz provided statistical information that he’d gathered from publicly available sources.  Newark argued that the disparity reflected by the statistics were not sufficiently substantial.  The federal district court agreed with the City and found that the statistical evidence Meditz presented did not “constitute sufficient evidence of a significantly discriminatory hiring pattern.”  The Third Circuit Court of Appeals did not agree and reversed.

The Third Circuit found, instead, that the statistics showed that the percentage of white, non-Hispanics in Newark’s non-uniformed workforce was lower than the percentage that would be expected based on Newark’s general population.  The case was remanded for the District Court to analyze the evidence in accordance with the correct standard, as described in the Third Circuit’s decision.

Meditz v. City of Newark, No. 10-2442 (3d Cir. Sept. 28, 2011) (PDF).

For more on disparate impact, see also:

9th Cir. on ADA and Drug Addiction

Overview of the Risks of Employment Testing

The Link Between Race and Obesity—Disparate Impact Waiting to Happen?

EEOC’s Proposed Regs for Age Discrimination Disparate-Impact Claims

The Delaware House of Representatives voted yesterday in favor of Senate Bill 30, a bill that would create same-sex civil unions in Delaware, and recognize civil unions performed in other states. The bill also changes all sections of the Delaware Code where marriage is mentioned, by requiring that the word “marriage” be read to mean “marriage or civil union.” 

Senate Bill 30 was approved by the Delaware Senate on April 7, and Governor Markell has already declared that he will sign the bill into law “as soon as a suitable time and place are arranged.” The law will take effect on January 1, 2012.

The new law raises several questions for employers.  For example, the law cannot, and does not, alter federal non-recognition of civil unions. So how will the new law impact employers?

Right to Employment Benefits

As we have previously indicated, the most significant impact of Senate Bill 30 is likely to be on employment benefits. When the law takes effect, employers will be required to provide partners in a civil union with the same benefits that they provide to partners in a marriage. The Act would not cover those currently not protected by the Delaware Discrimination in Employment Act (DDEA): (a) employers with less than 4 employees; or (b) religious corporations with respect to discrimination based on sexual orientation

Equality of Benefits

Employers should also be aware that equality of benefits is a two-way street. Many employers previously offered employment benefits to unmarried same-sex partners, but not to unmarried heterosexual partners. Now that same-sex couples have access to civil unions that are substantively identical to marriage, employers may be open to claims of reverse discrimination if they continue to offer benefits to same-sex partners who have not entered into a civil union, but do not offer the same benefits to unmarried heterosexual partners.

Employers should also be careful to impose the same requirements for receipt of benefits upon same sex civil union partners as they do upon married partners. While it is perfectly acceptable to ask an employee to verify his or her marital status before extending benefits, the same requests should be made of both same-sex and heterosexual partners. If you do not require a copy of a marriage certificate to establish benefits, you should not require a copy of a civil union certificate.

Discrimination Protection

As we have previously reported, the DDEA already protects Delaware employees from discrimination on the basis of sexual orientation. Keep in mind that homosexual individuals who may not have previously chosen to disclose that fact may, as a result of the new law, disclose that information so that their partner may enjoy benefits. Therefore, employers may possibly have knowledge of an employee’s protected class they might not otherwise have had – and should proceed cautiously with any adverse employment actions, particularly ones that may follow closely on the heels of such disclosure.

This post was authored by Adria B. Martinelli and Lauren Moak.  Adria will be speaking about the implications of Delaware's Civil Union and Equality Act of 2011 at our upcoming Annual Employment Law Seminar on May 11, 2011. 

A recent opinion from the U.S. Circuit Court of Appeals for the Ninth Circuit has clarified employer liability under the Americans with Disabilities Act, where the employer requires drug testing as a prerequisite to employment. In Lopez v. Pacific Maritime Associates, the plaintiff challenged a union's one-strike rule, which provided that one positive drug or alcohol test during pre-employment testing permanently prohibited hiring of the applicant.

In this case, the plaintiff applied for work as a longshoreman in 1997, but was rejected after he tested positive for marijuana. After seeking treatment for his drug addition, the plaintiff again applied in 2004, but was denied under the union's one-strike rule.

In response, the plaintiff sued under the ADA, alleging that he had suffered discrimination on the basis of a disability--his previous drug addiction. The plaintiff alleged both disparate treatment and disparate impact. In reviewing the appeal, the Ninth Circuit rejected the plaintiff's disparate treatment assertions on several fronts. First, the Court held that because the on-strike rule denied employment to both addicts and recreational drug users, it did not discriminate on the basis of addiction. In reaching its holding, the Court emphasized that "the ADA prohibits employment decisions made because of a person's qualifying disability, not decisions made because of factors merely related to a person's disability."

Second, the Court concluded that there was no evidence to indicate that the union imposed the one-strike rule with the intention of excluding recovering addicts from the workforce. Instead, the Court found that the one-strike rule was tied to a history of injuries and fatalities in the longshore industry, resulting from the use of drugs and alcohol in the workplace.

Finally, the Court found it significant that the union did not learn of the plaintiff's addiction until after it had again denied him employment in 2004. In the absence of knowledge about his disability, its decision could not have been based on discriminatory animus.

With regard to his disparate impact claim, the Court rejected the plaintiff's argument that the one-strike rule disproportionately impacted recovering drug addicts, because plaintiff did not provide any relevant statistical evidence in support of his allegations.

The Ninth Circuit's opinion should reassure those employers who engage in non-discriminatory drug testing. As we already know, if your drug testing policy applies to all employees meeting certain neutral criteria (e.g. all job applicants, or all employees involved in workplace accidents) your conduct is lawful under the ADA. While the one-strike rule addressed by the Ninth Circuit is severe, the Court's opinion is in keeping with previous ADA jurisprudence protecting employers who drug test job applicants and employees under facially-neutral circumstances.

EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan's alleged consideration of candidates' credit histories during the hiring process.  EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate's credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity.  In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.

Although I understand that there is a comfort to employers in using credit histories to screen clients, comfortable isn't always the most desirable outcome.  When an employer asks me about whether to rule out a candidate based on the candidate's credit history, I usually suggest that it's very possible that a top performing employee can be so focused on being a top performer that their personal lives are left unattended. In other words, you can imagine an employee whose personal credit is less than perfect because they're too focused on work--not the worst employee that I can imagine, by far.

Another scenario is an employee who goes through a difficult divorce, which results in a poor credit rating.  Or, alternatively, if the employee has had a serious family illness.  This, also, can lead to financial difficulty and, in turn, to a less-than-stellar credit rating. 

Of course, none of these scenarios are connected by race or ethnicity.  Thus, I can't say that I am particularly compelled by EEOC's position in the Kaplan case. But neither am I compelled by a credit score--especially not in a difficult economy or in any economy when looking for the best possible employee for the job.

One final note.  Illinois recently passed a law prohibiting employers from disqualifying candidates based on credit history.  The law takes effect on January 1, 2011.  Hawaii, Oregon, and Washington have similar laws.  And, as of late summer, 2010, similar bills were pending in 15 states.  So it seems indisputable that the practice is becoming more and more disfavored.

Other Resources:

Washington Post article re: EEOC v. Kaplan

EEOC Press Release

Delaware Department of Labor (DDOL) Office of Anti-Discrimination recently released its fiscal-year statistics relating to the charges filed and resolved in FY2009.  I posted previously about the stats, including some (hopefully) helpful charts that show the trends over time. 

Since the statistics were released, I've had some time to process the data and focus more on what is most relevant to Delaware employers. 

Charges, Charges, Charges

If you are an employer who received a Notice of Charge of Discrimination for the first time in 2009, you are not alone. There were more charges filed with the DDOL last year than any other year for which the statistics are published. In FY2009, the DDOL accepted 728 charges—an increase of nearly 20% over FY2008.

Retaliation Claims Continue to Reign as Enemy #1

It may not come as a surprise that the most-often filed charge was a retaliation charge. Charges of discrimination alleging retaliation constituted more than 70% of the charges filed last year. One reason for such a high number is that retaliation is often added as a second allegation in charges alleging other types of discrimination. Also, once a charge has been filed, it can be amended to add other claims. So, if an employee files a charge alleging gender discrimination and is subsequently terminated, she is likely to amend her charge with an additional charge of retaliation.

The increase in the number of charges filed that contain a retaliation claim is staggering. In FY2008, approximately 30% of all charges filed with the DDOL contained a retaliation claim—even less in FY2005-2007. Those numbers went up by 130% over the last fiscal year. It is fair to say that retaliation claims are, by any measure, an employer’s number one biggest threat in the context of discrimination claims.

Race- and gender-based claims enjoyed equal growth over last year—both accounting for an additional 40% of all claims filed. After retaliation, race (56.9%), and gender (46.4%) discrimination ranked as the second and third most commonly filed claims.

Defining “Success”—Reasonable Cause Findings Issued in FY2009

There is some good news for employers among these statistics. Overall, there number of reasonable cause findings issued by the DDOL remains small. On average, only 1.5% of all claims filed resulted in a cause finding. The DDOL’s long investigation periods, though, may skew these numbers. Because the average processing time for a charge is nearly a year, the reasonable-cause findings issued in FY2009 were likely issued for charges filed in FY2008.

The most successful claims in FY2009 were those based on age—reasonable cause was found in just less than 4% of all age claims filed. National origin was the second-most successful, with reasonable cause findings issued in 2.5% of those claims.

No reasonable cause findings were issued in three types of claims: (1) gender discrimination claims filed by males; (2) Asian-race claims; and (3) religious-discrimination claims.

Looking Ahead

The lesson to be learned from this data for Delaware employers is this:

The increased likelihood that your organization will be named in a charge means that you must be ever diligent in documenting the events of the workplace and being on high alert for potential issues as they arise and, especially, when dealing with an employee who complains of discrimination or harassment (formally or informally).

Also see:

2009 Stats on Delaware Charges of Discrimination

Delaware Department of Labor (DDOL), has published its yearly statistics for FY2009 relating to the charges of discrimination filed with its Office of Anti-Discrimination.  Here are some highlights:

It may not come as a surprise that the most-often filed charge was a retaliation charge, making up just over 70% of all charges filed.  Where a charge alleges more than one basis, each basis was counted separately, which explains why the total is higher than 100%.  It also indicates that retaliation is very often added as a second basis to a charge that alleges other types of discrimination. 

Again, not surprisingly, DDOL had a very busy year, with intakes at a five-year high.

The Supreme Court's recent decision in Ricci v. DeStefano, has put a spotlight on the confirmation of Supreme Court Justice Nominee Sonia Sotomayor.  But, for most employers, the case has much broader implications, casting further doubt on the long-term viability of employment testing for hiring and promotion decisions. Employment testing is on the U.S. Equal Employment Opportunity Commission's (EEOC's) "least-favorites" list for a number of years but employers, recognizing the critical nature of these decisions, continue to utilize testing as a screening mechanism.  The Ricci decision presents a good opportunity to review the laws around employment testing. 

Disparate-Treatment Discrimination

Employers that are considering using an employment test must take special care to avoid violating the federal anti-discrimination laws, particularly Title VII of Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Title VII prohibits two types of discrimination" disparate treatment and disparate impact.  Disparate treatment is what most people think of when they think of discrimination. This involves an intentional act of discrimination.  In the employment context, an employer takes an adverse employment action, such as deciding not to hire, against an individual because of the individual's race, sex, religion, or other protected characteristic.  In other words, you treat someone differently (disparately), because of a protected characteristic. 

Disparate-Impact Discrimination

Disparate impact, on the other hand, does not necessarily involve any animus towards an individual.  Instead, a policy or a practice (such as a test), is applied equally and without regard to membership in a protected class.  But the outcome or result disparately affects a protected class, thereby having a discriminatory impact.  Here's an example. Let's say an employer required all new applicants for any secretarial position to take a strength test as a prerequisite to being awarded an interview.  The test required applicants to bench press 110 pounds.  Most women applicants would not be able to pass the test and, as a result, only men would (for the most part) be awarded the positions. Because the test, which only tests physical strength, does not demonstrate whether the applicant is qualified for the position (i.e., can type X words per minute), the test would likely be found to constitute unlawful discrimination if challenged in court. If the test measured some trait or skill that was clearly related to the position being sought, the employer would have a much greater chance of success in defending the test.

The courts employ two methods to determine whether an employment test has a discriminatory impact.  First, if the selection rate for members of a protected group is statistically significantly different from the selection rate for the general pool, discriminatory impact is said to exist.  Second, there is said to be a discriminatory impact when the selection rate for members of a protected group is less than 80% of the selection rate for the group with the highest selection rate.

How to Demonstrate Job-Relatedness 

If either test is satisfied, the employer may still avoid liability by proving that the test measures job-related qualities.  To show job relatedness, the employer must prove three things: (1) that the test does correlate with successful job performance (criterion-related validation); (2) that the test actually measure the performance of job-related tasks or traits (content validation); and (3) that the trait being identified or measured by the test a trait that is a required to do the job well (construct validation). 

In our strength-test example, the employer would fail under the criterion-related prong if the employees could compare the scores of applicants on the strength test did not correlate to scores on a typing test.  For example, if the fastest typists were not able to pass the strength test, then either typing skills or strength must not be a valid criterion since it seems that applicants couldn't score well in both.  The employer would fail under the content-validation prong if the job did require physical strength, but only leg strength and the ability to bench press any weight was irrelevant.  The employer would fail under the construct prong if the employer could show that current secretaries, who were successfully working in the job, could not pass the strength test.  If they could do the job without passing the test, then the test, by definition, does not relate to job success and, therefore, is not job related. 

Best Practices

Employment tests seem to be going out of style with employers but are still serve as a key factor in many employers' hiring and promotion decisions.  If your organization either uses these tests currently or is considering their use, you can never be 100% sure that the test won't lead to a lawsuit. But you can take the steps discussed below to reduce your risk. 

First, as the most basic requirement, employers must issue all tests equally and without regard to race, religion, disability, or other protected characteristic.

Second, it is the employer's responsibility to ensure that the test has been validated and meets all three requirements discussed above. An employer that uses tests should retain a professional testing company or other expert to conduct a validation study to determine whether the test will have a disparate impact in violation of the anti-discrimination laws. The validation study must be conducted in accordance with "generally accepted professional standards for evaluating standardized test."  In other words, you must hire a professional--home-grown tests won't stand up in court. And remember, a test vendor's data on the test's validity may be helpful to your analysis but you, as the employer, are ultimately responsible to ensure that the test truly is legitimate.

Third, the employer should maintain records and retest for at least two years as a way to self-audit any potentially discriminatory impact.  What to look for in these self-audits?  Employers must evaluate the test for fairness for each race, sex, and ethnic group that constitutes a "significant factor" in its workforce.

The Dangers of "Home-Grown" Employment Tests

The EEOC has the following to say about tests that are casually adopted without having survived the rigors of validity testing:

Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

(See EEOC Fact Sheet on Employment Testing).  This is where most employers get it wrong.  With the best intentions, an employer finds an "aptitude" test on the Internet and then "modifies" it for use during the screening process.  When clearly-qualified applicants fail the test or identify a flaw in a test question, the employer just changes the answer key or permanently strikes the "bad" question.  This is a disaster waiting to happen, isn't it?  The test wasn't validated in the first place (at least not that the employer could identify if questioned) and has since been changed, depending on the whims of an individual test giver or hiring manager.  That, in my opinion, is a guaranteed way to fail the EEOC's test for discriminatory impact.

Delaware employers should prepare to add another protected characteristic to their list.  Late last night, the Delaware General Assembly passed Senate Bill 121, which would prohibit discrimination based on sexual orientation. It passed the Senate after a three-hour debate. 

The bill is headed to Gov. Jack Markell for signature.  The Delaware News Journal reports that Rep. Pete Schwartkopf (D-14th Dist.), who helped push the bill through the House, has said that Markell is expected to sign.   

The bill had been introduced every year for the past decade without success.  Five of those bills had passed the House but stalled in Senate committees.  We reported on an earlier version of the bill, which passed the House in March but died in the Senate Executive Committee.  A full version of the bill is linked below.