Courts Scrutinize Employer “Look” Policies

October 4, 2013 by Leave a Comment

Dreadlocks and Hijabs

An employer’s vision of a company’s “culture” can be risky business when it involves the appearance of workers.

Abercrombie & Fitch recently settled two lawsuits involving a provision of its dress code or “Look Policy” that prohibited Muslim employees from wearing a hijab (religious scarf) on the job.

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Catastrophe  Management Solutions, a Mobile, Alabama catastrophic  insurance claims company, for alleged discrimination against a  black applicant for employment because she wore dreadlocks.

In both cases, the employers allegedly interpreted their culture in such a way as to exclude workers who demonstrated physical or cultural characteristics  of race or religious identity.  Other employers run afoul of  Title VII of the Civil Rights Act of 1964 law when they interpret their culture in ageist or sexist ways.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups,  older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

Dreadlocks

Chastity Jones was among a group of  applicants who were selected for a group interview by Catastrophe Management Solutions on May 12, 2010.  Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.”  Jones was offered a position as a customer service  representative.

According to the EEOC, Jones’s offer of employment was rescinded later that day when  human resources staff met with Jones to discuss her training schedule and realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones  the company did not allow dreadlocks and that she would have to cut  them off to obtain employment.  Jones  refused to cut her hair.

The EEOC argues that Catastrophe’s ban on dreadlocks discriminates against African-Americans is based  on physical and/or cultural characteristics in violation of Title VII. The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M).

“This litigation is not about policies  that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Third time’s the Charm?

The EEOC reports that three federal judges have issued rulings in different cases in recent years rejecting Abercrombie’s claim that it would create an undue hardship and/or violate Abercrombie’s free speech rights to require the company to permit employees to wear hijabs. Title VII requires employers to accommodate the sincere religious beliefs or practices of employees unless doing so would impose an undue hardship on the business.

Abercrombie & Fitch last month settled two EEOC lawsuits involving its “Look Policy” –  an internal dress code that included a prohibition against head coverings.

The settlement follows a ruling by U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie was liable for religious discrimination in the firing of Muslim employee Umme-Hani Khan for wearing her hijab.

Khan, 19, started working in  2009 at the firm’s Hollister store (an Abercrombie & Fitch brand targeting teenagers aged 14 through 18) at the Hillsdale Shopping Center in San Mateo, Calif.  As an “impact associate,” she worked primarily in the stockroom.  At first she was allowed to wear headscarves in Hollister colors. Several months later, she was informed that her hijab violated Abercrombie’s “Look Policy” and that she would be taken off schedule unless she removed the hijab while at work.  Khan refused and was fired on Feb. 23, 2010.

Judge Rogers rejected Abercrombie’s argument that its Look Policy goes to the “very heart of [its] business model” and any deviation from the policy threatened the company’s success. She said Abercrombie offered only “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship.”  That testimony, she added, demonstrated “their personal beliefs, but are not linked to any credible evidence.”

Abercrombie settled Hahn’s case along with a lawsuit by Halla Banafa, who was not hired as an “impact associate” in Abercrombie’s Great Mall outlet in Milpitas, Calif., because of her headscarf. In April, U.S. Judge Edward J. Davila dismissed Abercrombie’s undue-hardship claims on summary judgment, citing the “dearth of proof” linking store performance or the Abercrombie brand image to “Look Policy” compliance.

The settlement requires Abercrombie to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations to the “Look Policy” may be available, and incorporate headscarf scenarios into all manager training.  The company must make regular reviews of religious accommodation decisions to ensure consistency and provide biannual reports to the EEOC and Khan.  Khan and Banafa will also receive $71,000 under the terms of the settlement.

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. The case is pending on appeal.

Filed Under: DISPATCHES, FEDERAL, TITLE VII, U.S. SUPREME COURT Tagged With: , , , , , , , , ,

EEOC Defends Criminal Background Checks

September 27, 2013 by 1 Comment

They’re Permitted Unless …

The EEOC has been slammed in recent weeks for filing discrimination lawsuits against employers who used criminal background checks to assess job applicants that resulted in the disproportionate exclusion of minority group members.

A feEEOCderal judge ridiculed the EEOC in August for a seeming double standard, noting the EEOC itself uses criminal background checks with respect to hiring employees at the EEOC.

Jacqueline A. Berrien, chairperson of the EEOC, recently responded to a July 24,2013 letter from nine state Attorney Generals asking the EEOC to reconsider its April 25, 2012 Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

She said the Guidance merely clarifies and updates a longstanding EEOC policy and does not prohibit employers from using criminal background checks in hiring.

She said an employer can be held liable for discrimination if it “uniformly administers a criminal background check that disproportionately excludes people of a particular race, national origin, or other protected characteristic, and is not ‘job related for the position(s) in question and consistent with business necessity’ within the meaning of Title VII. However, she said employers can avoid liability by using the EEOC’s recommended two-step process when evaluating criminal history checks of applicants. The EEOC recommends that employers:

1. Use a ‘targeted’ screen of criminal records that considers such factors as the nature of the crime, the time elapsed and the nature of the job.

2. Use a follow-up individualized assessment of employees who are screened out to ensure the employer is “not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information.” The second step also gives individuals a chance to correct errors in their records.

Berrien said the EEOC’s proposed individualized assessment process does not add significant additional costs for employers.

She said an employer does not have to conduct an individualized assessment “if it can demonstrate that its targeted screen is always job related and consistent with business necessity.”  She called the individualized assessment “a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.”

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013).

Titus notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. He acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential.

Berrien did not address the issue of background checks conducted by the EEOC on its job applicants.

Earlier, Berrien said recent EEOC lawsuits against BMW and Dollar General did not challenge the employers’ decisions to conduct criminal background checks but instead challenged screening processes that have a disproportionate impact on African-Americans that the commission believes are not job related and consistent with business necessity.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

The Attorney Generals who complained about the EEOC policy are from West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah.

Filed Under: CULTURE, DISPATCHES, EEOC, TITLE VII Tagged With: background checks, , , U.S. v. Freeman

Is the EEOC’s Strategic Plan Enforceable?

August 25, 2013 by 2 Comments

Hostile Courts Present Obstacle to Success

The U.S. Equal Employment Opportunity (EEOC) has come under attack in recent weeks in federal courts, raising questions about its ability  to implement its new strategy of filing systemic lawsuits.

Earlier this month, Judge Roger Titus of the U.S. District Court for the EEOCDistrict of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013),

In another case,  EEOC v. CRST Van Expedited, Inc.,  Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled  that the  Commission  must pay CRST, one of the nation’s leading transport companies,  a judgment of $4,694,422.14  stemming from a lawsuit filed by the EEOC alleging sex discrimination on behalf of  trainee Monika Starke and other similarly situated employees.  She had earlier dismissed the lawsuit.

In their decisions, the judges eviscerate the performance of the EEOC, the federal agency that is responsible for enforcing the nation’s discrimination laws.

All of this occurs in a climate that is not favorable to workers’ rights.   The U.S. Supreme Court is the most anti-employee court in modern history and has issued  decisions this year making it more difficult for workers to win class action and  discrimination cases. Research also shows that discrimination cases are dismissed at a higher rate in federal court  than other types of cases. 

Freeman

In the Freeman decision, Judge Titus points to the seeming irony of the EEOC’s goal of  prohibiting  background checks in hiring.   He notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. Judge Titus acknowledged that credit and criminal background checks adversely affect some groups  more than others but maintained that these checks are essential.  According to Judge Titus:

 “Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII.  However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States …”

Judge Titus also bashed  the expert report prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. He excluded it as evidence in the case on the grounds that  Murphy used an incomplete and inaccurate database. The  EEOC blamed  Freeman for failing to produce sufficient  information during discovery.

CRST

In the CRST case, Judge Reade castigated  the EEOC for failing to properly identify  potential class members. She expressed concern that the EEOC subjected CRST to a “moving target’ of prospective plaintiffs.”  

Judge Reade dismissed  more 67 potential class members from the lawsuit because the EEOC failed to  “conciliate” or attempt to reach a settlement in those cases –even though the EEOC took the position that this was not required.

Fair?

Whether or not these federal judges were fair to the EEOC,  the dismissals are disconcerting.  They represent a huge expenditure of scarce federal resources to combat a huge national  problem – employment discrimination and harassment. The number of lawsuits filed by the EEOC has declined dramatically over the years, from a high of 465 in 1999 to 155 in 2012.   

The EEOC last year  approved a Strategic Enforcement Plan to promote  more strategic use of agency resources.

The EEOC’s budget  has generally increased  in recent years – until last year. The EEOC’s budget was $341,900 million in 2009; $367,303 million in 2010; $385,303 in 2011; and $ 373,711 in 2012.

Filed Under: DISPATCHES, EEOC Tagged With: , , , , , , ,

Judge Whacks EEOC With $4.7 in Fees

August 13, 2013 by 5 Comments

Case of Female Truck Drivers Crashes and Burns

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed  by her two “Lead Trainers.”

 Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies,  $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision  is brutally unsympathetic to the EEOC and the  255 female trainees and drivers who alleged sex discrimination and harassment against CRST.  She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST. 

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.  

 Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often”  and “You got big tits for your size, etc. . . “  She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain.   “[I] was told that I could not get off the truck until the next day.”  she said.

 Starke’s other “Lead Trainer”  allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005  “in order to get a passing grade.”

 Starke is described as a German who struggles with English. She and her  husband subsequently hired a lawyer and filed for bankruptcy.  They failed  to mention  the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel –  a doctrine that is meant to protect the integrity of the court.  Judge Reade granted the motion.

 In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST. 

  In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

  In other cases, Judge Reade said CRST did not have legal (as opposed to real)  notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of  supervisor in that they could not fire the trainees.

 Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases –  which appears to be a brand  new requirement that could severely limit the  EEOC in the future. Judge Reade conceded that dismissal was a  “severe” sanction for these complainants.

 The EEOC appealed Judge Reade’s dismissal of the case  to the U.S. Court of Appeals for the 8th Circuit.

Appeals Court

In its decision, the  Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.  

 The  appellate court generally agreed that claims by female complainants that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim.  (It was unclear exactly how many times  a worker must be propositioned for sex to qualify as being harassed.)

 However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell,  who spent  seven days on the road with a male co-driver who asked her on three to five occasions to drive naked;  refused her request to stop at a truck stop so she could go to the bathroom,  ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

 The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as  “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.”  Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving  his urine receptacles about the truck’s cab for her to clean up.  

 The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

 Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court.  That brought Ms. Starke case back into the litigation.

 After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke. 

 The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.  

 Which left Ms. Jones as the sole surviving plaintiff.

Even though  the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

 The final award to CRST is actually larger than the earlier award by Judge because Judge Reade included fees and costs expended by CRST related to the appeal.

 Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

 

Filed Under: DISPATCHES, EEOC, FEDERAL, SEXUAL HARASSMENT Tagged With: , , , , , , , , ,