Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘hiring’

EEOC lawsuits allege sex discrimination in physical ability tests

Wednesday, August 9th, 2017

Three different cases. Three different theories of gender discrimination. But one common thread – an old school presumption that certain blue-collar jobs are a “man’s work.”

The Equal Employment Opportunities Commission (EEOC) has filed suit against three U.S. employers for sex discrimination in hiring. The lawsuits allege overt bias against female job candidates in the form of bogus physical tests, physical appearance, and a blatant “no girls allowed” hiring policy.

EEOC takes a strong stand against gender bias

Perhaps it was simply a coincidence of timing. But the EEOC is sending a message in three unconnected cases that gender discrimination will not be tolerated in 21st century America. When the EEOC was unable to resolve each of the cases through pre-litigation channels, it filed suit against a railroad (CSX Transportation), a shipping company (R&L Carriers) and a parking management service.

  • At CSX, female applicants failed physical requirement tests at a substantially higher rate than male candidates. Rather than indicating women are physically unfit for the industry, the EEOC contends that the tests favor men through arbitrary benchmarks.

Apparent rationale: They all take the same test. Not our fault if the ladies can’t cut it.

  • In the Eagle Parking case, a woman was turned down on the presumption – based on nothing more than her appearance – that she could not handle the “physicality” of the job. She was urged to apply for a desk job instead.

Apparent rationale: In the manager’s professional opinion, based on years of parking cars, a woman could not perform such a back-breaking feat.

  • In the R&L Carriers case, the EEOC alleges straight-up discrimination; no women are hired as dockworker and loaders, even when they are qualified candidates.

Apparent rationale: Some jobs are for dudes, and you’re not a dude.

Physical requirements can be an unfair barrier to women

The EEOC litigation will prompt a close look at physical ability requirements in candidate screening and hiring, particularly in traditionally male occupations. Courts have generally upheld the right of employers to use physical ability as a hiring criteria, with a few caveats: (a) physical tests must reflect the actual job duties, and (b) minimum requirements cannot be set arbitrarily high to exclude women.

For instance, only 7 percent of U.S. firefighters are female, chiefly because so few can pass the rigorous obstacle course exams. Through equal opportunity lawsuits, the physical ability standards have been scaled back in many jurisdictions to give female applicants a fighting chance to win the job and prove themselves. Detractors say the revised standards are watered down and compromise safety. Proponents say the standards were based on male demographics and were unnecessarily tough — no firefighter performs all those feats in an actual fire call.

Is the job really that rigorous?

Most blue-collar jobs do not require “American Ninja” strength and agility. Basic physical fitness is typically sufficient, and those who truly can’t do the work will soon quit or be let go. Too often, the barrier to employment is not women’s muscles but men’s outdated attitudes.

This blog was originally published at passmanandkaplan.com on August 8, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Sometimes hiring discrimination is committed by a bigot—and sometimes it's by standardized test

Monday, May 29th, 2017

You might think that a standardized test would be a way to eliminate discrimination from job hiring—everyone gets the same questions, and everyone’s answers are graded in the same way. But you’d be wrong. In fact, some standardized tests used widely by employers looking to screen job-seekers can be instruments of discrimination, Will Evans reports. One test alone caused illegal discrimination against more than 1,000 people, according to the Labor Department:

At a California factory for Leprino Foods Co., the world’s largest producer of mozzarella cheese, WorkKeys put 253 Latino, black and Asian applicants at a disadvantage, the department found. Leprino Foods eventually agreed to pay $550,000 and hire 13 of the rejected job seekers.

At a chemical plant in Virginia, an auto parts factory in upstate New York and an engine plant in Alabama, the tests also illegally screened out minority applicants, according to Labor Department records. At a General Electric Lighting plant in Ohio and an aluminum factory near Spokane, Washington, WorkKeys unfairly hurt the chances of female applicants, officials found.

The tests didn’t adequately measure whether an applicant would be good at the job, violating civil rights protections, according to the government. The employers paid a settlement to unsuccessful applicants and scrapped the tests.

But other employers—including local and state governments in many places—continue to use tests that aren’t relevant to the jobs they’re hiring for, potentially screening out people who are qualified for the jobs they’re trying to get.

While some workers have gotten settlements for the test-based discrimination they faced, they’re a drop in the bucket. And Evans’ story includes a warning for the future:

The cases faulting WorkKeys represent just a sample of potential problems in the job market, because the government agency that brings them audits a small fraction of federal contractors each year. That office could shrink under President Donald Trump, who has called for slashing the Labor Department budget overall by 21 percent.

Of course.

This blog was originally published at DailyKos.com on May 29, 2017. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and labor editor since 2011.

BCTGM 'Extremely Disappointed' by Reports Hostess Brands Buyer Will Not Hire Union Members

Sunday, April 28th, 2013

Jackie TortoraBakery, Confectionery, Tobacco Workers and Grain Millers (BCTGM) issued a statement today, responding to the sale of the iconic Twinkies brand.

In response to Metropoulos & Co. CEO C. Dean Metropoulos’ statement to The Wall Street Journal that the company will not hire union workers when reopening four former Hostess Brands bakeries, BCTGM International President David B. Durkee issued the following statement on behalf of all BCTGM members:

The BCTGM is pleased to see that Hostess Brands LLC, the newly formed snack cake company created by Apollo Global Management and Metropoulos & Co, has announced that it will be reopening four Hostess bakeries to produce the iconic Hostess cake brands. Those four successful cake plants were represented by the BCTGM for many years under former Hostess ownership.

However, we are extremely disappointed to see negative statements from company executives about the union status of its future employees. Ideally, we would like to see as many of our members hired as possible. We believe their combination of experience, dedication and know-how will give the new owners the chance to get high quality snack cakes back in the marketplace.

Federal labor law governing the hiring process and the obligations for the employer and the rights of the future employees in this situation is quite definitive. We expect that the new owners will respect the statutory rights of all workers during the hiring, startup and future of this new company.

The BCTGM remains focused on ensuring that the new Hostess Brands ownership understands that the snack cakes at the center of this new company are inextricably linked to the hands that make them—and have made them for generations. We know that our workers have a critical role to play in protecting and enhancing some of America’s most valuable consumer brands. We all want the same outcome: that the brands should prosper and endure. This is what the next stage of this saga is all about—implementing a new ownership and manufacturing structure worthy of the brands themselves and America’s manufacturing prowess.

Our members provide immense value to the new ownership with decades of experience, expertise and training. Not only have our members produced these quality products for consumers for generations, they know these bakeries inside and out. Our members are eager and willing to return to these snack plants and help usher in a new period of prosperity for Hostess snack cakes.

It is our sincere hope that the new owners will fully recognize the tremendous value of hiring back our members. If, however, they do not want us as part of the future of this company, we will continue to fight for our membership through other avenues.

This article was originally posted on the AFL-CIO on April 26, 2013. Reprinted with Permission.

About the Author: Jackie Tortora is an blog editor and social media manager at the AFL-CIO.

You Can't Compete With Me The...Legality of Non-Compete Agreements

Thursday, April 7th, 2011

micheal helfandMillions of Americans wake up every day, get dressed in business attire, and head to work- only their “job” these days is actually looking for one. Unemployment rates are still hovering around 9.6% nationally, making this job market highly competitive and hard to crack into. Employers know this, and in a lot of ways, the sheer volume of applicants per job gives them the ability to exclude benefits, cut salaries and make demands that are sometimes not only unfair, but illegal.

One such demand that employers are placing on new-hires is that they sign a non-compete agreement. A non-compete is a document that restricts where and who you can work for should you be fired or quit.  Is that legal and should you sign it?  In a few states, they’re generally not legal. For example, in California, a non-compete agreement is enforceable only if someone sells a business and agrees not to compete with the new owner. That aside, California employers cannot restrict the livelihood of their current or former employees. For most other states the short answer to are non-competes legal is yes-however, the agreement has to be “reasonable” to be legal and upheld in court. Before signing, there are some things you should look for within the agreement itself before signing.

·  Did you get something for it?  A non-compete must be supported by consideration.  This means that it needs to be part of your employment agreement, or if you are already employed, you need to be given some other benefit for agreeing to this extra restriction.  This can be a change in status, a raise, a longer term on your contract, or some other tangible gain for you.

·   Is such a restriction necessary for this employer?   In many states, a non-compete should only be used where there is a legitimate interest to protect.  Does your employer have some confidential information that they have worked hard to create and to maintain?  Does your employer have customer lists built over time that are significant and stable relationships?  If the answer to both is “no,” then there likely is no reason to have a non-compete restriction.

·  Is the non-compete period of time reasonable?  The time period you are restricted from competition with your former employer should be related to the amount of time it took to develop the confidential information or customer relationships.  Most courts have found restrictions reasonable where the time period was connected to the time it took to start to receive revenue from the customer relationship, for example.

·  Is the geographic area reasonable?  Similar to the time restriction, many courts will generally find the geographic restriction reasonable if it is limited to those areas where you have established relationships on behalf of the employer. Even if your employer’s business has a larger geographic area than your personal work covered, a non-compete is more likely to be upheld if it only restricts the area you personally had involvement. If your work covered the city of Chicago and the surrounding suburbs, it could be unreasonable to be restricted from your profession in a 100-mile radius around downtown Chicago.

·  Are you being restricted from activity that is reasonable?  Your employer should only restrict you from those activities that are necessary to protect the business interest, so that you are not unfairly competing.  Non-competes that tried to restrict an employee from working at all for a competitor are generally held to be unreasonable in most states.  Instead, the employer should have narrowly tailored the restriction to just those activities which directly compete with your former employer.

The good news is, now you know your rights and can arm yourself with good information so that you can negotiate any non-compete you may be asked to sign. The bad news is, some employers know that their non-compete agreements toe the line of unreasonable, hence illegal- but they do not care. They will try to get you to sign on the dotted line any way by refusing to hire you if you do not. It is the very definition of being between a rock and a hard place when you are unemployed. If you find yourself in this position, first know you have legal recourse as courts frown upon companies who participate in this behavior. Secondly, you must ask yourself if this is the kind of company you want to work for? If they are using scare tactics to get you to sign an unreasonable non-compete, what else will they do once you are employed and dependent on your paycheck?

About the Auhor: Michael Helfand has been a Chicago attorney since 1997 with a focus on trying to change the way people find attorneys and legal information. In 2001 he launched  a state wide network of like-minded attorneys who talk in plain English, only pursue legitimate cases and fight for their clients. Mike recognized that the unique facts of the case should determine who the right lawyer is for a case. His network makes that goal a reality and the hundreds of lawyers he partners with state wide have achieved unmatched success for their clients.

Do Workers with Criminal Backgrounds Deserve a Second Chance?

Thursday, March 31st, 2011

Michelle ChenThe promise that 2011 will be a year of economic recovery rings hollow for the workers held back by their past. For many who’ve been in trouble with the law, not even a lifetime is enough to recover from a bad rap sheet.

A brand-new report by the National Employment Law Project shows that people with criminal backgrounds, even those who’ve paid their dues to the state, are unfairly shut out of employment opportunities and denied the second chance they need to overcome their past.

Today, about one in 100 adults in America are in the prison system. Prison releases have exceeded 700,000 per year, according to recent federal data . And many are headed for a job market where the vast majority of employers screen applicants for criminal histories. According to NELP, “more than one in four U.S. adults—roughly 65 million people—have an arrest or conviction that shows up in a routine criminal background check.” All that adds up to a dead end for people who have a criminal taint on their record.

In the midst of fierce competition for scarce jobs, a second chance is hard to come by for people with criminal backgrounds—which could range from an arrest for smoking a joint decades ago, to a more serious conviction for which a sentence has been fully served. NELP’s research reveals that employers across the country routinely post job ads that include blanket clauses disqualifying applicants with criminal records. A compilation of online job listings includes phrases like, “You must not have any felony or misdemeanor convictions on your record. Period.”

(Image via Ban the Box campaign, The Defenders Online)

(Image via Ban the Box campaign, The Defenders Online)

But civil rights advocates aren’t letting biased employers get the last word. They have launched legal challenges against these exclusionary hiring policies under the framework of Title VII of the Civil Rights Act, which bars discrimination on the basis of race, gender and other protected categories. Since blacks and Latinos are historically overrepresented throughout the criminal justice system—in arrest rates as well as length of the sentence—advocates argue that the words “need not apply” in effect act as a structural barrier to opportunity in communities of color.

The downward spiral of exclusion and marginalization is intensified when the job market is increasingly under the grip of mega-companies. People seeking entry-level jobs in their communities may be completely at the mercy harsh screening policies at major employers like Radioshack, Aramark, and, that bastion of legal rectitude, Bank of America.

There are reasonable arguments for screening applicants for criminal histories, particularly if employers have workplace security concerns. Yet, as NELP points out, there is often little if any connection between a rap sheet and the personality, goals or capacities of the person behind it. A minor drug charge during one’s youth may look like a glaring blight on an application form. But the employer who screens her out automatically will never hear the job-seeker explain in an interview how she’s been sober,  steadily employed for the past ten years, or how the police record was erroneous in the first place and never corrected.

The data, in fact, shows that giving the benefit of the doubt to people with less-than-pristine records pays dividends for employee, employer and society as a whole. In the long run, NELP argues:

The irony is that employers’ attempts to safeguard the workplace are not only barring many people who pose little to no risk, but they also are compromising public safety. As studies have shown, providing individuals the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.

A few progressive employment and training programs have emerged to address some of these barriers, but social services alone cannot make up for the economic toll of a criminal justice system aimed at punishment and not rehabilitation, much less helping people build a future from a rough past.

In addition to racial disparities, exclusionary policies may have special impacts on women struggling to to reintegrate into work and family life after prison. A 2008 study published by University of California-Berkeley School of Law examined the economic prospects of formerly incarcerated women and found hidden obstacles that prevent them from staying employed (and out of jail).

When you peel back the stigma of a criminal record, you’ll find much more troubling histories underlying their struggles, including physical and sexual abuse, health problems, and the hardships of long-term separation from their children. Focus group studies with women in the Bay Area suggested that the social services and programs in their communities were inadequate for helping overcome these hurdles.

One of the lead researchers in the study, Monique Morris, told In These Times of how legal barriers to employment, coupled with misguided policies within prison, sometimes reach the height of absurdity:

In a number of instances, women were qualified to work in a field because of work experience while incarcerated, but precluded from working in that same area upon their release because of their criminal record. For example, a number of women worked as fire fighters while incarcerated. But they could not do that work on the outside.

According to the study’s analysis of job applications showing a woman had done time versus those that didn’t, “formerly incarcerated women were 31 percent less likely to receive a positive response from potential employers.”

The consequences go beyond the sting of rejection. When an unalterable stigma is combined with long-term unemployment, being permanently branded as a criminal can lead to crippling self-doubt, frustration, and in some cases, desperation that is deep enough to drive someone back into crime.

Over time, thousands of individuals who are asked to “check the box” on an application form are slowly drained of the will to put their lives back together. That only adds to the sense of hopelessness dogging the country’s working class—building a social prison that our “recovering” economy can ill afford.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen@inthesetimes.com.

This blog originally appeared In These Times on March 24, 2011. Reprinted with Permission.

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