Disparate Impact Suit - Credit Checks

Three times a year for the last several years I have done a program for the UT School of Law, CLE group called Essential Employment Law. In the morning, I talk about theory and in the afternoon my good friend (and great lawyer) Connie Cornell talks about the practical application.

One of the things I always cover are the three theories of discrimination, including disparate impact. Since disparate impact is not something that always readily comes to mind when you first think about discrimination I always try to mention an example that might cause people to relate to something that they could be doing.

This year, based on the EEOC's recent interest, I talked about credit checks. See, EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria.

Given that history, it was not rocket science to predict such actions might be coming, but I did find it affirming to see the headline in today's Employment Law 360, School Sued Over Use Of Credit Checks In Hiring ($), challenging the University of Miami's Medical School's hiring practices.

According to the article:

The lead plaintiff in the case is Loudy Appolon, a black woman who lives in Miami. In the summer of 2009, she applied for and was offered a position as a senior medical collector at the university's medical school.

Just before her employment was about to commence — and after she had resigned from her previous position at North Shore Medical Center — the university reneged on its job offer due to her credit history, the complaint alleges.

It says that her credit history showed no pending delinquencies and just a few defaults from prior years that had been remedied to the satisfaction of lenders.

As noted by the term "lead plaintiff", the case was filed as a class action. Unfortunately, almost by definition disparate impact claims lead to class claims.

And if you have not looked in awhile at how savvy plaintiffs' employment lawyers are using the net in these cases, check out the website Credit Discrimination Lawsuit, by one of the plaintiffs' counsel in the suit (Outten & Golden LLP), which include a link to the complaint filed in the S.D. of Florida along with reports and case studies. It also poses the following three questions:

• Have you been a victim of Credit Discrimination while applying for a job at the University of Miami?
• Have you been denied a job based on your Credit History?
• Have you been denied a job based on your Criminal History?

Note that while the first question is limited to the University of Miami, the other two cast a much broader net. If you can answer yes to any of the three, the site kindly notes that "we" would like to talk with you and provides a questionnaire where you can furnish the details.

It may not be a bad time to brush up on disparate impact law.

University of Texas School of Law and Labor Law

When I graduated from UT Law School in 1975, I had taken the only labor law course that was offered (if you didn't count the 2 hour Employee Rights course, which was solely about workers compensation claims). It was a traditional labor law course about the NLRA and was taught by Jerre Williams, who later served on the 5th Circuit. Professor Williams was active as a neutral.

The current labor law expert on the UT Campus is Julius Getman and his latest book, How to Restore the Power to Unions is reviewed at Today's Workplace.

In Defense of the EEOC? No, Just a Reminder About Pancakes

Tom Crane, at the San Antonio Employment Law Blog, had a very interesting post last week that complains about an EEOC investigator turning an employee away when it appeared she had a valid complaint, EEOC Would Not See Retaliation If It Was in Front of Its Face.

And I must admit the story is fairly compelling.

After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:

Within ten minutes, the owner calls the employe, still at the investigator's office. She puts him on speaker phone. The owner says, "I understand you complained about me. You don't need to return to the office." The owner fired the employee over the EEOC's own phone within ten minutes of her complaint. The investigator heard it all.

One might think, great, what great evidence! The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong. The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation. He tells the employee she should just go collect her last paycheck and move on with her life.

It is certainly not my place to defend the EEOC, they are big enough to do that themselves, nor can I say that I have not heard of events happening at the EEOC that are probably not the best course of action. (But hey, what large organization doesn't have some incidents that don't put them in their best light.)

But I do have to say, when I read the story, a saying by one of my former law partners came to mind:

Every pancake, no matter how thin, has two sides.

My guess is that there is another side to this story.

The Technology Changes -- But the Principles Stay the Same

I have seen several posts about the NLRB issuing a complaint based on an employee's facebook post about their supervisor, that led to additional comments by fellow employees. See Nolo's Employment Law Blog's post as an example, NLRB Sues Employer for Firing Employee Over Facebook Post.

When I talk about social media, I always make the point that although the technology is new, the principles that need to be applied already exist. The law about concerted activity is quite developed; shoot, it was well developed when I had my first 5th Circuit argument back in 1979. There the issue was a comment made at a meeting about an announcement that the employer was going to require everyone to take two weeks off as they moved the printing plant where the employees worked. It's that same body of law that now gets dusted off, because instead of a comment made at a worker's meeting, it is a comment issued through a new mode of communication.

Although it is not to say that there is nothing ever new, it is true that it is probably more rare than we think.

Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation

While most eyes were turned to the election results last Tuesday night, a former Los Angeles policeman was enjoying a $4 million dollar verdict in his favor, after a jury agreed that he had been fired because of his testimony in a federal wage and hour lawsuit brought against the city by another officer.

Richard Romney had testified that he had followed the "unwritten policy" of denying officer's pay for less than a full hour of overtime. After his testimony, an investigation was initiated and he was ultimately discharged for violating the city's written rules on overtime. L.A. County jury awards $4 million to former LAPD officer.

Although all jury verdicts have a long way to go before they become collectable judgments, this one has an additional and somewhat unusual hurdle. It could be severely influenced by the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics, which was argued on October 13th. The transcript of the argument is here.[pdf]

Part of the issue is that the FLSA was really the first statute to provide employee rights and a prohibition against retaliation outside the union context, and Congress had not yet had the ability to focus on all the aspects of what protected activity really needed to be covered. Whether the statute is applied as it was written or as Congress would no doubt write it now, may make all the difference.

And in this case, that's a big difference.