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On March 19, 2012, the Mayor of the District of Columbia signed the Unemployed Anti-Discrimination Act of 2012 (the "Act"), which prohibits employers and employment agencies from discriminating against job applicants based on their unemployment status. The Act is set to become the nation's first law to ban the consideration of an applicant's unemployment status in adverse hiring decisions. The Act will take effect following the statutorily mandated 30-day period of U.S. Congressional review, and publication in the District of Columbia Register.
Although the Act does not allow employees and applicants a private right of action, it is nevertheless significant in that it provides unemployed applicants and employee whistleblowers unprecedented protection from discrimination based on employment status. The only other similar law in effect is in New Jersey, but that law pertains to job advertisements alone, banning employers from advertising that the unemployed need not apply. Oregon's legislature passed a bill similar to New Jersey's law, but that bill has not yet been signed by Oregon's governor.
As unemployment discrimination legislation is gaining interest among legislators across the nation, we recommend that employers within and outside DC pay attention to the broad protections afforded under the Act, with the understanding that similar legislation may soon be enacted in your state. To assist employers in understanding the Act, this Alert discusses the scope of the Act's coverage, as well as the unlawful practices, enforcement mechanisms, and remedial schemes set forth therein.
The coverage of the Act is expansive. "Employer" is defined as any person who employs or seeks to employ for compensation one or more individuals for a position in DC (but not including the person's parent, spouse, child, or domestic servant engaged in work in and about the employer's household), as well as any person acting in the interest of the employer, directly or indirectly.
The Act also covers "employment agencies" – defined as any person regularly undertaking or attempting, with or without compensation, to procure employees for an employer (or to procure opportunities for employees to work for an employer), as well as an agent of such person.
Under the Act an "employee" is any individual employed by an employer, and a "potential employee" includes any individual who has applied to an employer for a vacant position to obtain employment.
Finally, the Act defines "status as unemployed" to mean any individual who, at the time of applying for employment, or, who at the time an act alleged to violate the Act occurs, does not have a job, is available for work, and is seeking employment.
Under the Act, it is an unlawful practice for an employer or employment agency:
Retaliation/Whistleblower Protections Defined
Under the Act, which contains broad retaliation and whistleblower protections found in other anti-discrimination laws, employers and employment agencies are prohibited from interfering with, restraining, or denying the exercise of any right specified therein. Further, the Act prohibits employers and employment agencies from failing or refusing to hire, or discharging, any employee or potential employee for:
The Act contains three exemptions that allow employers and employment agencies to continue to engage in certain activities when filling job vacancies. Accordingly:
Enforcement and Remedy
The District of Columbia Office of Human Rights ("DCOHR") will be responsible for handling all complaints alleging violations of the Act. Once a complaint has been filed, the DCOHR will have one month to investigate and determine whether an employer or employment agency violated the Act and assess a penalty.
Under the Act, DCOHR can assess civil penalties of $1,000 per claimant for a first violation, $5,000 per claimant for a second violation, and $10,000 per claimant for each subsequent violation (but not to exceed a total of $20,000 per violation). DCOHR will distribute the funds among any employee or potential employee who filed a claim under the Act.
Along with New Jersey's law, the Act may be the harbinger of future legislation at the federal and state levels. In fact, there are currently four bills pending before the U.S. Congress that would prohibit employers from making most hiring decisions based on an applicant's unemployed status (which two of the federal bills define to include gaps in employment history). Unlike the Act, however, these bills would allow applicants and employees to bring a private right of action and to recover generous remedies from employers and employment agencies found to be violating the law. Furthermore, bills containing some form of ban on employment discrimination have been proposed in approximately half of state legislatures.
It is worth noting that this issue is also on the radar screen of the Equal Employment Opportunity Commission (EEOC). Last year the EEOC conducted a public hearing on the topic of unemployment discrimination, entertaining the prospect that the alleged practice disparately impacts minority groups protected under existent federal discrimination law and the agency is purportedly investigating a number of charges involving allegations of unemployment discrimination.
Overall, the hiring process has received a tremendous increase in legislative and judicial attention in recent years both at the federal and state levels. This scrutiny includes a headwind of laws and proposed laws and potential new guidance from the EEOC that would ban or limit inquiries into an applicant's credit and criminal background history and use of social media.
If you have any questions or concerns regarding the Act, please contact your labor attorney.
Authors of this alert:
Katharine H. Parker & Daniel L. Saperstein
Note: The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or firstname.lastname@example.org. ©2012 Proskauer Rose LLP. All rights reserved. Used with permission.
The U.S. Equal Employment Opportunity Commission published new regulations [on March 30, 2012,] setting forth the agency's interpretation and position on the scope of the "reasonable factors other than age" ("RFOA") defense to disparate impact claims under the Age Discrimination in Employment Act (the federal law prohibiting discrimination against employees age 40 and over). The regulations take effect 30 days after publication. While the EEOC insists that the regulations are "not intended to impose unwarranted burdens on employers," the reality is that they will make many employers' decision-making processes far more complex, and will make it far more difficult for employers to successfully assert the RFOA defense than ever before. The regulations are also likely to lead to increased disparate impact litigation, as plaintiffs exploit the more onerous defense standards. Meanwhile, how courts will interpret these regulations, and what deference they will give them, remains to be seen, meaning, at least in the short term, a great deal of uncertainty.
The EEOC has explained that its goal in drafting the regulations was to bring EEOC regulations in line with the United States Supreme Court's decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab. In those cases, the Court held, among other things, that while the ADEA authorizes recovery for disparate impact claims, the RFOA test, rather than the more stringent business necessity test, is the appropriate means of determining the lawfulness of a practice that disproportionately affects older individuals. Unlike the business necessity test, which asks whether there is any other way for the employer to achieve its goals that would not result in a disparate impact on a protected class, the RFOA defense requires only that the employer's actions be "reasonable." While the individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes a disparate impact, as the Supreme Court held in Meacham,the employer defendingan ADEA disparate-impact claim bearsboth the burden of production and theburden of persuasion on the RFOA defense.
The New Regulations
Per the new regulations, whether a particular employment practice is based on a reasonable factor other than age turns on the facts and circumstances of each particular situation. A reasonable factor other than age, says the EEOC, is "a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances."
To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and was administered in a way that reasonably achieves that purpose in light of the facts and circumstances that were known, or should have been known, to the employer.
The new regulations contain a non-exhaustive list of "considerations" that will be examined to determine whether a practice is based on a reasonable factor other than age. What other factors courts will consider remains an open question. The EEOC has made clear that no specific consideration or combination of considerations need be present to establish the RFOA defense, nor does the presence of one of these considerations automatically establish the defense.
The enumerated "considerations" are:
These new considerations will be examined whenever an employment decision that has an adverse impact on older employees is challenged. Practically speaking, this means that employers are going to be held to a higher standard, and may be under closer scrutiny, than ever before. It will be crucial that employers ensure not only that the factors used in making employment decisions are related to their business goals, but that the processes they use in implementing policies or practices that may have a disparate impact on those 40 and over can withstand scrutiny.
In light of these new regulations, employers should anticipate that employment decisions that are alleged to have an adverse impact on older employees will be challenged. Hence, in order to prepare for and rebut the inevitable litigation that is sure to follow, prudence dictates that employers consider the following steps now:
As noted, we expect to see an increase in disparate impact litigation arising from the new regulations and, because the regulations are untested, there remains a great deal of uncertainty as to how to proceed with actions that may have an adverse impact on older employees. This uncertainty will likely be compounded by the EEOC's issuance of Q&As regarding the new regulations, which in various places appear at odds with the regulatory language and the agency's discussion in the preamble to the regulations.
Seeking the advice of counsel at the early stages of decision-making can be immensely helpful in heading off issues before they become problems. If you have any questions or concerns, do not hesitate to contact your labor attorney.
In light of the many veterans returning from service and seeking work in the private sector, the U.S. Equal Employment Opportunity Commission (EEOC) issued two new guidance documents focusing on employment rights of disabled veterans. The first guidance document is geared toward employers and entitled, "Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers." See http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm. The second guidance document is geared toward veterans and entitled, "Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Wounded Veterans." See http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm.
Both documents discuss the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) on Title I of the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) with respect to disabled veterans. They evidence greater coordination between the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) and EEOC support for the OFCCP's proposed new rules for federal contractors concerning Section 503 of the Rehabilitation Act. (For more information about these rules, see Proskauer Client Alert "OFCCP Notice of Proposed Rulemaking" found at: http://www.proskauer.com/publications/client-alert/ofccp-notice-of-proposed-rulemaking/.) In particular, the new EEOC guidance indicates that the proposed new rules concerning applicant tracking and pre-offer invitations to self-identify would not, in the EEOC's view, violate the ADA's prohibition of certain disability-related inquiries. However, substantial questions have been raised by the business community concerning the legality of some aspects of the OFCCP's proposed Section 503 rules, including as to pre-offer disability inquiries, and the EEOC guidance may carry little weight in the event of a court challenge. Nonetheless, employers should carefully review the guidance documents to understand what the EEOC currently views as best practices with respect to the recruitment and employment of disabled veterans.
This client alert summarizes the key aspects of both the Employer and the Veteran Guides.
I. Employer Guide at a Glance
II. Wounded Veterans Guide at a Glance
III. What This Means for Employers
The guidance documents offer a strong statement by the EEOC that the commission intends to aggressively enforce anti-discrimination laws that apply to veterans with service-connected disabilities. The EEOC guidance documents are by no means exhaustive, and employers should be aware that additional rules and requirements govern employer hiring and employment practices. Employers should be sure to fully understand and comply with veteran and disability anti-discrimination laws.
If you have any questions regarding the new EEOC guidance, compliance with ADA or USERRA, or other laws related to veterans with service-connected disabilities, please contact your labor attorney.
Alcohol Awareness Month is an opportunity to raise awareness of alcohol abuse and encourage people to make healthy, safe choices. Below is an excerpt from a publication by the National Institute on Alcohol Abuse and Alcoholism (NIAAA), Beyond Hangovers: Understanding Alcohol’s Impact on Your Health.
To read the entire publication or to print or order copies for your employees, click here.
For more information and additional resources and publications, visit the NIAAA website at www.niaaa.nih.gov.
Know the Risks:
Genetics, environment, and lifestyle habits can all heighten your risk of getting cancer. We can’t do anything to change our genes, and we often can’t do much to change our environment. But lifestyle habits are a different story.
Drinking too much alcohol is one lifestyle habit that can increase your risk of developing certain cancers. This does not mean that anyone who drinks too much will develop cancer. But numerous studies do show the more you drink, the more you increase your chances of developing certain types of cancer.
For example, a group of Italy-based scientists reviewed more than 200 studies examining alcohol’s impact on cancer risk. The collective results of these studies clearly demonstrate that the more you drink, the higher your risk for developing a variety of cancers. The National Cancer Institute identifies alcohol as a risk factor for the following types of cancer:
At least 7 out of 10 people with mouth cancer drink heavily. Drinking five or more drinks per day can also increase your risk of developing other types of cancers, including colon or rectal cancer. In fact, summary estimates from the recent World Cancer Research Fund report indicate that women who drink five standard alcohol drinks each day have about 1.2 times the risk of developing colon or rectal cancer than women who do not drink at all.
People who drink are also more likely to smoke, and the combination increases the risk significantly. Smoking alone is a known risk factor for some cancers. But smoking and drinking together intensifies the cancer-causing properties of each substance. The overall effect poses an even greater risk.
The risk of throat and mouth cancers is especially high because alcohol and tobacco both come in direct contact with those areas. Overall, people who drink and smoke are 15 times more likely to develop cancers of the mouth and throat than nondrinkers and nonsmokers. In addition, recent studies estimate that alcohol and tobacco together are responsible for:
Women and Cancer:
One recent, groundbreaking study followed the drinking habits of 1.2 million middle-aged women over seven years. The study found that alcohol increases women’s chances of developing cancers of the breast, mouth, throat, rectum, liver, and esophagus. The researchers link alcohol to about 13 percent of these cancer cases.
In addition, the study concluded that cancer risk increases no matter how little or what kind of alcohol a woman drinks. Even one drink a day can raise risk, and it continues to rise with each additional drink. While men did not participate in this study, the researchers believe this risk is likely similar for men.
This study also attributes about 11 percent of all breast cancer cases to alcohol. That means that of the 250,000 breast cancer cases diagnosed in the United States in 2008, about 27,000 may stem from alcohol.
Know the Reasons:
Scientists are still trying to figure out exactly how and why alcohol can promote cancer. There are a variety of possible explanations.
One explanation is that alcohol itself is not the primary trigger for cancer. We know that metabolizing, or breaking down, alcohol results in harmful toxins in the body. One of these toxins is called acetylaldehyde. Acetylaldehyde damages the genetic material in cells – and renders the cells incapable of repairing the damage. It also causes cells to grow too quickly, which makes conditions ripe for genetic changes and mistakes. Cancer can develop more easily in cells with damaged genetic material.
In addition, recent animal studies have shown that as cells try to break down alcohol, they cause the body to produce additional amounts of a protein called vascularendothelial growth factor (VEGF). VEGF promotes the growth of blood vessels and organ tissue. But, the flip side of having too much VEGF is that it allows blood vessels to grow in cancer cells that would die on their own. This allows the cancer cells to develop into tumors.
We also know that alcohol can damage the liver, causing cirrhosis. Cirrhosis results when too much scar tissue builds up within the liver and leaves it unable to perform its vital functions. One of the many complications that can result from cirrhosis is liver cancer.
Hormones may be the link between alcohol and breast cancer. Alcohol can increase the amounts of some hormones in the body, including estrogen. An excess of estrogen may lead to breast cancer.
Finally, genetics may play a role in preventing some heavy drinkers from developing cancer. A European research team examined 9,000 people with similar lifestyle habits to determine why some of them developed mouth and throat cancers, and some did not. Of the participants who were heavy drinkers, those who did not develop cancers had a particular genetic alteration that enabled them to break down alcohol about 100 times faster than in those without it. The study suggested that this gene is the reason why some people are less likely to develop cancer in response to heavy drinking.
Know There’s a Bright Side
Fortunately, studies show that you can reduce your risk for cancer by drinking less. A recent Canadian report analyzed studies from 1966 through 2006 and concluded that risk reduction is possible, specifically for head and neck cancers. The study found that as people abstained from drinking, their risk for developing cancer plunged. After 20 years of abstinence, former drinkers had the same risk for head and neck cancers as people who never drank.
THE CONTENTS OF THIS COMMUNICATION DO NOT CONSTITUTE LEGAL OR TAX ADVICE. We have provided this communication for general informational purposes only, and it is not intended to dispense legal or tax advice. Employers should consult their own legal and tax counsel to determine if there are legal issues that need to be addressed as part of the ongoing administration of their employee benefit plans and human resources policies.