3 Tips for Harassment Investigations

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three.male female sign_3

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer.

Second, don’t decide anything in advance. This is important because, if you’ve already made your mind up before you ask the question, you’ve already failed as an investigator. In order to get the information that you need, you must truly listen. And the interviewee will know if you’re not listening. So keep an open mind and don’t jump to conclusions.

Third, remember that there may be more than one version of the “truth.” It’s rare that I am presented with a complaining witness who I think is actually “lying.” It’s far, far more common that the complainant misunderstood the events or misinterpreted the meaning. And, frequently, for one reason or another, the complainant has repeated the story so many times in his or head that the story has become the truth. In other words, the complainant truly believes that the events occurred the way that he or she is describing them.

There is a tremendous body of social-science research about this third item. Eye-witness accounts can be, well, dead wrong. If you think you’re the exception, or, if you just want to see how differently people can see the same event, you may want to take a look at the “selective attention test” by Daniel Simons and Christopher Chabris.  Watch the video and see how many passes you count and then compare your answer to others . . . and then consider how certain you should be about the observations of the employees you’re interviewing.

Delaware Joins the Ban-the-Box Bandwagon

Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector.  HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon. criminal_background

As we previously reported, the bill would prohibit public employers and contractors with State agencies from:

inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.

Once a conditional offer of employment has been made, the employer may perform a background check but, even then,

may only consider felonies for 10 years from the completion of the sentence, and misdemeanors for 5 years from the completion of the sentence.

The bill would also require employers to “several enumerated factors” (i.e., the EEOC’s factors) when deciding whether to revoke a conditional offer based on the results of a background check.

The scope of the bill is broader than you may suspect.  It would apply not only to public employers (i.e., State government), but also to “contractors with State agencies.”  It does, however, provide for an exception for contractors who are subject to conflicting State or federal laws.  For example, a child-care facility that contracts with the State would not be subject to the new law because it is obligated by other State laws to comply with certain background-screening requirements.

The trend towards prohibiting employers from inquiring into an applicant’s criminal history or credit score does not appear to be going away any time soon.  Although, for now, only public employers in Delaware will be subject to this ban-the-box law, it may be just a matter of time before the scope is expanded to include private-sector employers, as well.

See also

Bill Would Limit Use of Criminal Histories for Delaware Employers

Wilmington Joins the Ban-the-Box Bandwagon

Other posts on criminal-history checks for potential employees

Bill Would Limit Use of Criminal Histories for Delaware Employers

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits-both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Winter Woes: Employment Discrimination Via Facebook

Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought.3d man with thermometer in cold weather_thumb

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal.

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants.

Perhaps it’s because the weather has turned cold in the Northeast and it’s put me in a cantankerous mood, but I take issue with the implications of these results.

First, if a hiring manager has a bias, either consciously or subconsciously, against a particular class of candidates, he is no more likely to act on that bias merely because he learns that an applicant falls into the class via Facebook.  There are numerous studies that show that a candidate’s surname can impact whether he is called for an interview.

Second, this discriminatory screening happens only if a candidate’s online information can be seen by the hiring manager.  The most recent data of which I am aware says that less than 25% of Facebook users maintain a public profile.  Good digital citizens who are seeking employment know not to keep their Facebook page public for all to see.

Third, the WSJ article concludes with a quote from an employment lawyer, who reports that he “advise[s] employers that it’s not a good idea to use social media as a screening tool.”  Well, I’ve been saying it since 2005 and I’ll continue to say it now, hogwash.  The hiring decision should be made with great care. Internet searches for applicant information can be excellent tools, provided they are conducted in a legally defensible manner.

Moreover, employers should not deny the reality that their hiring managers are searching online for information about a potential candidate.  Instead of turning a blind eye to this reality, employers are best advised to address it by implementing best practices to prevent unlawful discrimination, while still ensuring the best possible hiring decisions.

See also, Screening Job Applicants with Facebook: Parts 1, 2, and 3

EEOC Ordered to Pay Big Fees for Pursuing Criminal-History Suit

The EEOC suffered another defeat this week, being ordered again to pay the fees and costs incurred by an employer after the EEOC’s claims turned out to be without merit.  IN EEOC v. Peoplemark, Inc., A split 6th Circuit affirmed an award of approximately $750,000 in fees and costs incurred by a temp agency in defending against one of the EEOC’s criminal-history cases.  The EEOC contended that the temp agency’s company-wide policy barring employment to individuals with felony records had a disparate impact on Black candidates.Fees letterpress_3

The temp agency, PeopleMark, had offices in five states.  In 2005, a Black candidate, Sherri Scott filed a Charge of Discrimination, alleging that she had been denied employment because she had a felony conviction.  In fact, Scott had two felony convictions and had been released from prison less than a month before she applied for a job with PeopleMark.

And it gets worse.

The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents.  Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit.  The suit, asserted on a class of individuals, alleged that the company’s policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.

The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons.  Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.

The EEOC eventually agreed to dismiss the case but, as you may imagine, PeopleMark was not exactly satisfied and it sought sanctions in the form of fees and costs incurred in the litigation in the amount of approximately $1.3 million.

In March 2011, the U.S. District Court for the Western District of Michigan granted the motion and awarded approximately $750,000 in fees to PeopleMark.  On appeal, the 6th Cir. affirmed, finding that the employer was entitled to recover fees from the time that the EEOC learned or should have learned that PeopleMark did not have the policy as the EEOC had alleged.

EEOC v. Peoplemark, Inc., No. 11-2582 (6th Cir. Oct. 7, 2013).

See also

EEOC Faces Petition for $5.5m in Fees

W.D. Pa. Finds EEOC Failed to Conciliate

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far-Part 2

When the EEOC Goes Too Far

EEOC v. Ruby Tuesday

An Employment-Law Perspective on the Anthony Weiner Story

Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

So, how does this apply do Anthony Weiner? Well, many of his defenders argue that his sexual escapades are not indicative of his ability to perform the duties of mayor. And this may well be true.

But think of it like this. Weiner got into trouble the first time around because of certain conduct. He stepped away from the political spotlight but returned shortly thereafter, asking for forgiveness for his indiscretions. He told the voting public that he had recognized that his conduct was wrong and, at least implicitly, that he wouldn’t engage in the conduct again.

From an employment-law perspective, the nature of the conduct is irrelevant. What is relevant is that Weiner didn’t keep his promise to refrain from engaging in the conduct. It’s his apparent inability to learn from his mistakes, and the failure to keep his promise, that reflect on his suitability for the job-not the nature of the conduct itself.

Give Me Some Credit! EEOC Credit-Check Case Dismissed

“Give Me Some Credit!” Maybe that’s how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan’s Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of “race raters” to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan’s Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC’s case had to be dismissed.

There are several interesting considerations arising out of this litigation. First, as the Court’s decision noted, the EEOC itself uses credit checks to vet job applicants! This should not come as a great surprise, as many employers use credit checks as one of a litany of tools at their disposal to identify the best-qualified candidates. Nonetheless, for an agency that has widely publicized the pitfalls of background checks in the hiring process, its adoption of the practice calls its hardline stance into question.

Second, the EEOC’s past enforcement practices gave rise to many of its difficulties in this case. Many employment law attorneys discourage their clients from collecting race, gender, and other protected-characteristic data during the application process. In the past, the EEOC has used such information to support disparate hiring claims. Kaplan, in complying with EEOC best practices, deprived the EEOC of information that it needed to prove its case, thereby leading to the rejected “race rater” approach.

Finally, many employment law experts and EEOC-watchers are wondering if the Court’s decision will put a damper on EEOC enforcement efforts directed at background checks. As readers of this blog know, background checks have been in the EEOC’s cross-hairs for quite some time, with new guidance issued on the use of criminal background checks in April 2012. In light of the hurdles faced in this case, many are speculating that the EEOC may back off of its efforts to litigate these issues, focusing instead on conciliation efforts.

Only time will tell. In the meantime, employers can rejoice in a victory for the reasoned and supportable use of pre-employment credit checks.