Articles Posted in Workplace Discrimination

Do you ever worry that what you say, or post, online might haunt you at work? Recently some employers have requested that new, or even current, employees divulge which online community to which they belong and provide login information and passwords. Can they do that?
Tennessee recently passed the Employee Online Privacy Act of 2014 (Online Privacy Act) which will prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. This law will go into effect in January 2015.
The Online Privacy Act prohibits an employer from:
• Requesting or requiring an employee or applicant to disclose a password that allows access to a personal internet account;
• Compelling an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal internet account;
• Compelling an employee or applicant to access a personal internet account in the presence of the employer in a manner that enables the employer to observe the contents of the personal internet account; or • Discharging, failing to hire, or taking adverse action or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.
There are, of course, some exceptions. Among other exceptions, an employer is allowed to:
• Discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
• Conduct an investigation or require an employee to cooperate in an investigation if there is specific information on the employee’s personal internet account regarding compliance with applicable laws or prohibitions against work related employee misconduct, or the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
• View, access or use information about an employee or applicant that is available in the public domain.
• Conduct an investigation or require an employee to cooperate in an investigation regarding compliance with applicable law or prohibitions against work related employee misconduct, or an investigation about the unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
Individuals whose rights are violated under this law may sue the employer and recover up to $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.
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While it sounds like something that would be an issue in a science-fiction, futuristic movie, cases involving discrimination due to genetic information are popping up across the country.

On May 21, 2008 the President signed in to law the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA. The law was written in order to protect Americans from being treated unfairly because of differences in their DNA that may affect their health. GINA prevents discrimination from both health insurers and employers.

The passing of GINA was important for everyone. Every person has numerous DNA differences that could increase or decrease their chance of getting a disease such as diabetes, cancer or heart disease. The research in DNA health can be used to help treat people. However, it can also be used to discriminate against people as well.

Recently, one of the first Genetic Information Act lawsuits was settled against a nursing home in New York. The nursing home would ask employees about their family medical history as part of its post-offer, pre-employment medical exam of all applicants. This kind of information request is illegal under GINA. The EEOC sued the nursing home on behalf of 138 individuals who had been asked for their genetic information and the nursing home settled for $110,400 to be payable to all of the individuals.

As cases have started popping up around the US based on genetic discrimination, people are starting to better understand the rights that are protected under GINA. People can have genetic tests done which could benefit their health while sleeping soundly knowing that the feedback provided by the tests is safely secure and unable to be used against them.

While this is still a relatively new law, both health insurers and employers do fall under the guidelines, as of 2009. However, the law as it is currently written does not cover life insurance, disability insurance or long-term health insurance.
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Late last week the United States Senate passed the Employment Non-Discrimination Act. This Act prohibits hiring and employment discrimination based on the sexual orientation and sexual identity of an individual. Essentially, this Act takes the law prohibiting discrimination on the basis of race, sex, religion or national origin, found in Title VII, and extends it to lesbian, gay, bisexual and transgender individuals.

The bill passed the Senate with a 64-32 vote with ten Republicans voting in favor of its passage. ENDA is not in effect yet, though it has passed one major hurdle in being passed by the Senate. Now the amended version of the bill will go to the House of Representatives for approval. The House presents another hurdle as many Republicans have spoken out against it. Further, Speaker of the House John Boehner has previously indicated that he is against the bill and will likely not even bring it up for a vote.

If the bill is indeed brought before the House and passed, then ENDA could greatly change how discrimination is defined across the country affecting both employers and employees alike. This new bill would create an entire new group of protected individuals from discrimination. However, as of now, we are waiting to see what the House does with the passed bill and we could be waiting a while.
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The Higgins Firm is happy to announce a new addition to the Employment law group. Aaron B. Gentry was recently hired as an associate attorney to bring more knowledge to the already strong Employment law team of Anne Williams, Jon Street and Brandon Hall. Aaron attended Clemson University where he received a Bachelor of Science degree in Political Science. Upon graduation from Clemson, Aaron went on to study law at the University of Tennessee, Knoxville College of Law. He furthered his education by also receiving a Master’s of Business Administration while at the University of Tennessee, Knoxville. With this addition, the Higgins Firm is even more prepared to fight hard for our clients on a myriad on employment law issues ranging from American with Disabilities Act matters to overtime pay issues to workplace discrimination.
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Last week, U-Haul agreed to pay $750,000 to settle a lawsuit brought by eight African-American current and former employees claiming racial discrimination and retaliation. The U.S. Equal Employment Opportunity Commission (EEOC) had brought forth the lawsuit on behalf of the eight plaintiffs. According to the lawsuit, a white supervisor had subjected the employees to racial slurs and other racially charged comments at a U-Haul facility in Memphis. The complaint alleged that the manager had regularly referred to the black employees with racial slurs. The complaint also stated that the company engaged in retaliation by firing one employee when complaints were made to the supervisor.

The alleged conduct violates what is known as Title VII of the Civil Rights Act of 1964. The EEOC had filed suit in federal court in the Western District of Tennessee.

In addition to the payment of $750,000, the consent decree enjoined U-Haul from discriminating against its employees on the basis of race and from any retaliation against its workers who may assert their rights under Title VII in the future. In addition, U-Haul is required to implement a policy that prevents racial discrimination through training.

You feel that your employer has treated you unfairly or may even have wrongfully terminated you. What is your next step? You want to find a good Tennessee Employment Law Attorney to evaluate your case, but you don’t even know what you should look for in a lawyer. Here is a short list of things you’ll want to consider:

1. Knowledge and Expertise. Employment cases can be very complicated. You may call a lawyer because you feel you’ve been treated unfairly, and the lawyer may find other violations you haven’t even considered. For that reason, it’s important to find a lawyer who focuses on this area of law. Just like doctors, lawyers have specialties. Look for a lawyer with a background in cases like yours.

2. Belief in your case. Your case is important to you. It should be important to your attorney, too. Choose someone who understands the outcome you are seeking and who believes you have a strong case.

3. Likeability. Believe it or not, you’ll be spending a lot of time with your lawyer so you want someone you like. You’ll need to follow the advice of your lawyer at every step, so make sure that it is someone you feel you can trust.

4. Fee structure. Make sure you find out from the beginning how the attorney will get paid. Most employment cases are done on a contingency basis, which means your lawyer takes a percentage out of your recovery. Many cases provide that if you win, the employer has to pay your attorneys’ fees. The lawyer should explain how it works in your first conversation.

5. Experience. Find out if your lawyer has a track record of success in matters like yours. Ask the lawyer for references or even a list of cases where she has been successful. Make sure the lawyer has handled cases in front of the court or agency where your case will be heard. Knowledge of procedure is just as important as knowledge of the law.

Our Tennessee Employment Lawyers are glad to discuss their qualifications with you.
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The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dollar General Corp. earlier this week based on the company’s use of criminal background checks for new hires and employees. The civil lawsuit claims that the retailer has “engaged in ongoing, nationwide race discrimination against black applicants” for almost a decade. The EEOC contends that the use of criminal background checks affects blacks disproportionately. As a firm that handles as significant number of employment discrimination claims the outcome of this case will be interesting.

The EEOC filed suit on behalf of two black former applicants who had jobs or job offers rescinded following a background check. According to the EEOC, one case involved a woman who had disclosed a felony conviction of controlled possession six years prior to her hiring. Shortly after beginning work, she was fired when the felony conviction and a misdemeanor conviction for possession of drug paraphernalia appeared on a background report.

The other case involved a female who contends that she was fired because of a background check that wrongly included a felony conviction. The EEOC said that the company refused to hire the woman even after learning of the error. The lawsuit claims that the employees were victims of a hiring policy that unilaterally bans individuals with certain convictions within specific time frames from working for the company.

An EEOC spokesperson stated that the federal agency is seeking to overcome barriers to employment. In addition, it was the agency’s hope that the “lawsuits would further educate the public and the employer community on the appropriate use of conviction records.”

Dollar General contends that its background check process is created “to foster a safe and healthy environment for its employees, its customers and to protect its assets in a lawful, reasonable and non-discriminatory manner.”

But how could this case affect you? Looking at a much broader view, the outcome of this case could affect companies as well as potential job applicants throughout the country.

If the EEOC is successful, companies may be required to review exactly how their background checks are used in determining whether to hire an employee. While this case will certainly not require that companies hire criminals or prohibit the use of background checks, it could impact the hiring process. It is possible that an outcome favorable to the EEOC could alter the way companies automatically disqualify job applicants without any process for individualized review.

If Dollar General is successful, the hiring process for companies would remain the status quo. However, at the least, this suit brings about an awareness of potential discriminatory hiring practices in areas previously not recognized as discriminatory.
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