Discrimination

Justice Scalia’s Employment Law Legacy

Kathryn Mantoan and Michael DisotellPosted on February 24, 2016

On February 13, 2016, Justice Antonin Scalia, the anchor of the Court’s conservative wing for nearly three decades, passed away. He leaves behind a distinguished legal career that involved experience in wide range of roles. After graduating from Harvard Law School, Justice Scalia entered private practice and then became a law professor at the University of Virginia. He served in the Nixon and Ford administrations, eventually becoming Assistant Attorney General. Scalia then began his judicial ascension when President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit. Soon thereafter, Reagan nominated Scalia to the Supreme Court to replace Justice William Rehnquist, whom Reagan had named to the Chief Justice position. Scalia was unanimously confirmed.

Financial Services and Technology Companies Beware: The U.S. Office of Federal Contract Compliance Has A Target on Your Back

Mike Delikat and Jill L. RosenbergPosted on February 11, 2016

The President released his 2017 budget this week. Budgets are aspirational documents that Congress rarely implements in full. The current acrimony between Congress and the Administration ensures that the President’s 2017 budget will likely remain aspirational. However, Presidential budgets and their accompanying justifications can shed light on an agency’s priorities.

New York City Commission on Human Rights Will “Vigorously Enforce” New Legislation to Protect Caregivers From Employment Discrimination in New York City

Jill L. Rosenberg and Lisa LupionPosted on January 13, 2016

On January 5, 2016, New York City Mayor Bill de Blasio signed a bill that added “caregiver” to the list of protected classifications under the New York City Human Rights Law. The law, which takes effect on May 4, 2016, seeks to protect employees and applicants from discrimination because of their status or perceived status as a caregiver. Carmelyn Malais, the Commissioner of the New York City Commission on Human Rights vowed that “the Commission will vigorously enforce this much-needed protection” for “every parent and family member caring for a loved one.”

Leading the Way on Transgender Rights in NYC: City Commission on Human Rights Issues Detailed Enforcement Guidance

Jill L. RosenbergPosted on December 30, 2015

On December 21, 2015, the New York City Commission on Human Rights (Commission) issued Legal Enforcement Guidance (Guidance) clarifying New York City’s prohibitions against discrimination on the basis of gender identity and gender expression. Discrimination based on gender identity and expression in employment, housing and public accommodations has been illegal under the New York City Human Rights Law (NYCHRL) since 2002. According to the accompanying press release, the Guidance is intended to make clear, through specific examples, what the Commission considers gender identity and gender expression discrimination under the City law and to offer best practices to employers and other stakeholders on how to comply with the law. The Guidance also solidifies New York City’s place as having one of the most protective laws in the country for transgender and other gender non-conforming individuals.

Testing the Limits of Employee Privacy: Ninth Circuit Allows EEOC To Obtain Extensive Personal Information About Employees Despite Privacy Concerns

Michael WeilPosted on November 19, 2015

The Ninth Circuit recently held that during the course of an investigation, the EEOC can force employers to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of applicants and workers other than the charging party if the information is relevant to the underlying investigation.

Big Data, Big Problems: The Liability Pitfall Lurking Beneath the Shiny Surface of “People Analytics”

Erin Connell and Mark ThompsonPosted on November 3, 2015

The use of big data in employment decisions—a practice often referred to as “people analytics”—has exploded in recent years. Lately, however, the concept is gaining more and more attention not only for its appeal of faster and more efficient hiring, but also for the significant risks it can pose. One key risk is the potential for a disparate impact claim, particularly on a class-wide basis. So while proponents of using software tools and algorithms to identify and select job candidates claim people analytics is more efficient and effective than traditional recruiting and selection procedures, employers should take care when choosing tools and vendors, and should proactively monitor their implementation to avoid big liability.

The Gay Marriage Decision: Support for Title VII Employment Discrimination Claims?

Lynne Hermle and Mark ThompsonPosted on July 7, 2015

Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26^th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.

New York City “Bans the Box”—Inquiries Into Applicants’ Criminal Histories Now Significantly Restricted

Jill L. Rosenberg and Mark ThompsonPosted on June 12, 2015

On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process. With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called “ban the box” legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application. The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.

Emergence of Transgender Status Issues in Workplace Raises Compliance Questions for Employers

Jessica PerryPosted on May 21, 2015

Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.

And the Oscar Goes to . . . Equal Pay? Arquette’s Oscar Speech Sparks Comparable Worth Bill in California

James McQuadePosted on March 17, 2015

Just in time for Women’s History Month, California State Senator and Chair of the California Legislative Women’s Caucus, Hannah-Beth Jackson, introduced Senate Bill 358 (SB 358), which seeks to narrow the gender pay gap in California. Citing best supporting actress Patricia Arquette’s recent Oscar acceptance speech where she called for, “wage equality once and for all and equal rights for women,” Senator Jackson hopes to turn that rallying cry into concrete legislation in California.

Employment Law and Litigation