Candidate Screening: Salary History Joins Growing List of Banned Criteria!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On May 4, 2017, New York Mayor Bill De Blasio signed a bill which bars private employers from (1) inquiring about a prospective employee’s salary history during all stages of the employment process, and (2) relying upon a prospective employee’s salary history in the determination of salary. New York City joins Massachusetts, Puerto Rico and Philadelphia which already have similar legislation.  The theory behind such laws is that such inquiries may serve to perpetuate discrimination that job applicants have experienced in the past.

Laws addressing candidate screening are nothing new.  Amongst the federal laws which directly govern pre-employment inquiries are (1) the Americans with Disabilities Act, (2) the Genetic Information Nondiscrimination Act, (3) Employee Polygraph Protection Act, and (4) the Fair Credit Reporting Act.  Certain pre-employment inquiries have also been recognized to be synonymous with, or evidence of, unlawful discrimination under federal, state or municipal laws.

In recent years, however, states and municipalities have taken the lead in directly regulating certain candidate screening practices. Inquiries regarding salary history are  only the latest screening methods to be targeted.

UNEMPLOYMENT

In 2011 and 2012, respectively, New Jersey and Oregon passed laws prohibiting job postings which state or suggest that (1) the qualifications for the job include current employment, (2) the employer will not consider or review an application for employment submitted by any job applicant currently unemployed, or (3) the employer will only consider or review applications for employment submitted by job applicants who are currently employed. In 2012, the District of Columbia passed a law barring discrimination against an applicant who is unemployed.

CRIMINAL RECORDS

Job Postings

San Francisco requires private employers to state in all job solicitations/advertisements that qualified applicants with arrest and conviction records will be considered for the position.

Inquiries Regarding Arrest Records

Several states have laws limiting inquiries or reliance upon arrests which did not lead to convictions.  These laws vary considerably from state to state and from municipality to municipality.  In California, Illinois, Massachusetts and Rhode Island, for example, employers may not inquire about or use any information related to prior arrests that did not lead to convictions.  Other states, such as ColoradoGeorgiaIdaho, Kansas, Maryland, MichiganNew York, North Carolina, Oklahoma, UtahVirginia, Washington and Wisconsin, (1) exclude certain types of arrest records from employer inquiry, (2) allow an applicant to deny certain types of arrest records, or (3) both.

Other states – Hawaii and Wisconsin –outlaw discrimination against applicants with arrest records.

Inquiries Regarding Juvenile Records

Effective January 1, 2017, private employers in California may not ask applicants about juvenile records relating to arrest, detention, processing or adjudication while the applicant was subject to the juvenile court system.  Other states, including Ohio and Texas, (1) exclude sealed or expunged juvenile records from employer inquiry, (2) allow  an applicant to deny the existence of such records, or (3) both.

Inquiries Regarding Conviction Records

Five states – Hawaii, Kansas, New York, Pennsylvania and Wisconsin – have enacted statutes which make it unlawful for private employers to discriminate against applicants with conviction records. Such statutes have varying exceptions based upon the nature of the job and the suitability of the applicant for the job.  In Washington, an employer may not generally base hiring decisions on convictions, where conviction or release from prison occurred more than 10 years earlier.

Moreover, nine states – Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island and Vermont – have enacted so called “ban the box” statutes which prohibit inquiries by private employers into conviction records until after the employment application.  Many more municipalities, including Austin, Texas, have passed similar “ban the box” ordinances.

In California, a private employer may not ask about minor marijuana convictions that are more than two years old.

Inquiries regarding Conviction Records That Have Been Sealed or Expunged

In California, a private employer may not ask about convictions that have been sealed, expunged or statutorily eradicated, or a referral to or participation in a pretrial or post-trial diversion program.  Other states, including Florida, Kansas, Ohio and Rhode Island, (1) exclude sealed or expunged conviction records from employer inquiry, (2) allow an applicant to generally deny the existence of such a record, or (3) both.

CREDIT HISTORY

Ten states – California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington – as well as several municipalities, including the District of Columbia and New York City, place limitations on the ability of private employers to check an applicant’s credit history in making a hiring decision.

MILITARY DISCHARGE STATUS

Subject to certain exceptions, Illinois makes its unlawful to discriminate against any individual in hiring based on military discharge status.

TAKEAWAYS FOR PRIVATE EMPLOYERS

Salary history, employment status, criminal background, credit history and military discharge status have long been criteria by which employers screened candidates for employment.  For instance, previous salary history may be informative as to whether a candidate will likely accept an offer of employment or be satisfied with employment if accepted.

Increasingly at the state and municipal level, however, the interests of job candidates are being favored over the interests of employers.  It is expected, therefore, that the list of states and municipalities which govern the use of such criteria will continue to grow.  It is also expected that the list of banned criteria will continue to grow.

Private employers must thus be vigilant in keeping apprised of the laws of every state and municipality in which they hire employees.  What may be lawful hiring criteria today, may become unlawful hiring criteria tomorrow.

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Supreme Court Likely to Resolve Conflict As to Sexual Orientation Bias

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “sex.”  In the past 30 days, three federal appellate courts have addressed the question of whether discrimination on the basis of sexual orientation can be actionable under Title VII as a form of “sex” discrimination.

On March 10, 2017, a panel of the Eleventh Circuit in Evans v. Georgia Regional Hosp. found  (by a 2-1 vote) that it could not recognize sexual orientation claims under Title VII.  In doing so, the panel opined that it was bound by the 1979 Fifth Circuit decision in Blum v. Gulf Oil Co., which had held “[d]ischarge for homosexuality is not prohibited by Title VII.”

On March 24, 2017, a panel of the Second Circuit in Christiansen v. Omnicom Group, Inc. declined to hold that Title VII bans discrimination on the basis of sexual orientation.  Similar to the Eleventh Circuit, the panel observed that it lacked the power to reconsider an earlier Second Circuit decision holding that sexual orientation claims are not cognizable under Title VII.  Two of the three judges, however, argued in concurring opinions that the Second Circuit ought to reconsider its earlier precedent.

On April 4, 2017, in an en banc decision, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” outlawed by Title VII.  Three justices dissented reasoning that “[s]exual orientation is not on the list of forbidden categories of employment discrimination” set forth in Title VII.

So what does it mean for employers that there are seemingly inconsistent appellate opinions as to whether sexual orientation discrimination is prohibited by Title VII?  First, it means that the issue is likely headed to the Supreme Court.  A conflict of opinion amongst lower appellate courts is one basis for the Court to agree to hear a case.

Second, it means that employers can no longer assume that sexual orientation claims under Title VII will be dismissed.  Indeed, many federal courts have already held that gay plaintiffs may be able to survive dismissal under Title VII by couching their claims as gender stereotyping.  In Christensen, therefore, the Second Circuit found that an openly gay male plaintiff pleaded a claim of gender stereotyping under Title VII that was sufficient to survive dismissal.

Finally, it means that employers should be reviewing their personnel policies and training programs to make sure that sexual orientation discrimination is addressed. The alternative could be costly and protracted litigation even if the Supreme Court ultimately and finally decides that discrimination based upon sexual orientation is not a form of “sex” discrimination outlawed under Title VII.