Tag Archives: Employment discrimination

UPDATED: California Bans Applicant Salary History Inquiries

Contributed by Noah A. Frank, November 8, 2017

Add salary history to the growing list of topics that may be off limits on employment applications and during interviews, depending on where your business operates.

32420632 - law gavel on a stack of american moneyCalifornia joins a growing list of jurisdictions banning salary history inquiries. On October 12, 2017, California Governor Brown signed Assembly Bill 168, which prohibits employers from seeking or relying upon applicants’ salary history and using such information as the basis for establishing compensation. The new law takes effect on January 1, 2018.

Like ban-the-box legislation (banning inquiries into criminal conviction history) and sick leave ordinances, this is likely the start of a national trend enacted on a jurisdiction-by-jurisdiction piecemeal basis.  California joins Massachusetts, Oregon, and Delaware, along with several municipalities, such as New York City, Philadelphia, Pittsburgh, and U.S. territory Puerto Rico, to enact such legislation in an emerging national trend.  Indeed, since we reported on Illinois’s forestalled HB1462 amending the Equal Pay Act in September, the Illinois House has overridden the governor’s veto, and the bill is on its way to the Illinois Senate for similar consideration.

The Basics

Like the other jurisdictions’ laws, California’s legislation is meant to remedy past gender-based compensation discrimination.  However, given the broad language, this bill will apply to all protected classes such as (and not limited to) race, religion, military status. Under AB-168, all employers in the state of California:

  1. May not inquire directly or indirectly into an applicant’s compensation and benefits (unless publicly available as provided by other laws).
  2. May not rely on salary history as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
  3. Must provide the pay scale for the position to an applicant applying for employment “upon reasonable request.”  Note that this is a fairly unique provision in California’s law (at least for now).
  4. May not allow prior salary alone to justify any disparity in compensation.

Notably, if an applicant “voluntarily and without prompting discloses” compensation history, the employer may then consider it as a factor in determining the salary to offer an applicant.

Compliance Made Easy

In light of these trends in the workplace, employers must ensure that they are compliant with new and emerging laws as enacted, and to also perform routine audits – including employment forms, handbooks, policies, and templates.  As it relates to these salary inquiry laws, employers should (1) ensure job applications are compliant and do not include salary/wage inquiries, and (2) review interview questions, especially “scripts” used by management, and ensure that those conducting interviews are aware of the new unlawful inquiry.

What’s the Bottom Line on Salary History Inquiry Bans? Don’t Ask.

You may not ask applicants “how much do you currently make?” But you may ask: “how much would you like to earn in this position?” or “What are your compensation expectations?” or other similar future-oriented inquiries.

Employer May Be Held Liable For Employing Murderer!

Contributed by Noah A. Frank, July 27, 2017

Claims of negligent hiring, training, and retention is alive and well. Employers must be prepared to investigate, and fully remediate supervisors’ misconduct.

code of conduct

Recently, the Seventh Circuit Court of Appeals (Illinois, Wisconsin, Indiana) held that an employer may be liable for intentional acts committed by supervisory employees against other employees outside of work if the employer has been negligent. The tragic case, Anicich v. Home Depot USA, Inc., 852 F. 3d 643 (7th Cir. 2017), arose from the death and rape of a pregnant employee at the hands of her supervisor.


Home Depot and its garden centers subcontractors (together, the “Employer”) jointly employed Brian Cooper as a regional manager. The victim’s estate alleged the employer knew Cooper had a history of sexually harassing, verbally abusing, and physically intimidating female subordinates, which included making crude and lewd comments, yelling and swearing at them, rubbing against them, controlling their conduct by pressuring them into spending time with him alone, and even throwing things.

The supervisor’s mistreatment of one subordinate, Alisha Bromfield, began in 2006 when she started working for the employer seasonally as a teenager. Cooper fixated his attention on her, calling her his “girlfriend” at work and repeating the above misconduct with her. Senior management, aware of Bromfield’s repeated complaints, failed to take reasonable steps to protect Bromfield, ensure that Cooper completed mandated anger management training or remove his supervisory duties. This ended in tragedy.

In 2012, when Bromfield was 7 months pregnant, Cooper threatened her. Using his supervisory authority, he demanded that she attend an out-of-town wedding with him, telling her he would fire her or reduce her hours if she refused. Bromfield acquiesced, but denied Cooper’s recurring demand to “be in a relationship.” After the wedding, Cooper murdered Bromfield, and then raped her corpse.

The Court held that employers have a duty to act reasonably in hiring, supervising, and retaining their employees, and that this was part of a broader trend toward recognizing employer liability for supervisors’ intentional torts committed outside the scope of employment – even where the harm caused was wholly disproportionate to more predictable harms (e.g., murder/rape versus continued sexual harassment, emotional/mental trauma). Because Cooper was alleged to have abused the employer’s grant of supervisory authority over Bromfield, the employer could be vicariously liable for Cooper’s torts committed against Bromfield.

Employers’ Duty in Light of the Seventh Circuit Court Ruling

Anicich is instructive. Employers that fail to act to stop an employee’s abuse of supervisory authority could be held liable for even the most extreme and gruesome intentional tortious and criminal conduct.

As such, employers must protect their businesses, including the following minimum steps:

  • Understand the risks associated with subcontracting and joint employer relationships, including supervision and control;
  • Implement and train employees on anti-discrimination, harassment, and sexual harassment policies, including a published complaint/reporting procedure, and prohibiting retaliation;
  • Take seriously and investigate all reports and complaints – no matter how minor, and even for repeat complainants;
  • Remediate any issues – including stripping supervisory authority, mandating training, and transferring/terminating employees;
  • Prohibit and protect those involved from, retaliation;
  • Respect and comply with collective bargaining rights – and get the union’s buy-in when necessary; and
  • Seek the advice of and guidance from experienced employment counsel when issues arise to ensure legal compliance and implementation of best practices to mitigate exposure.

Mickey Mouse – You Got Served: Former Disney Employees File Discrimination Claims

Contributed by Nick Kourvetaris

EMPLOYERS BEWARE!  Not even the magical Mickey Mouse can escape lawsuits.  Former employees of the Walt Disney Company filed complaints with the Equal Employment Opportunity Commission (EEOC), intending to sue the house of Mickey Mouse (and now even Yoda’s) for replacing them with foreign workers. Not only are former employees complaining because they were laid off, but they are also accusing Disney of hostile treatment.  Two employees recently recounted to ABC news how they were given 90 days to train their replacements in order to receive the bonuses they were promised. The workers claim that they were victims of national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, which prevents employers from discriminating against an individual based upon “race, color, religion, sex, or national origin.”

The EEOC states that national origin discrimination involves treating people (applicants or employees) unfavorably because:

  • they are from a particular country or part of the world
  • of ethnicity or accent
  • they appear to be of a certain ethnic background (even if they are not)
  • they are married to (or associated with) a person of a certain national origin
  • of their connection with an ethnic organization or group

Of note, the EEOC asserts that “[d]iscrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.”

The former employees allege that Disney replaced US workers with subcontracted foreign workers and temporary work visa holders.  Under the visa, a US company can employ foreign workers – in highly specialized fields such as in engineering, mathematics, science, and medicine – for up to six years.

outsourcing workersEmployers must be especially cognizant of the fact that complaints of national origin discrimination are becoming increasingly commonplace.  In fact, so commonplace that it has prompted two United States Senators – Chuck Grassley, Chairman of Senate Judiciary Committee, and Dick Durbin, Assistant Democratic Leader – to introduce a bill that would prohibit companies from hiring such employees.  The senators say that this provision would crack down on outsourcing companies that import influxes of such workers for condensed training periods who then send these workers back to their country of origin to do the work that would otherwise be performed by American workers.

Companies must be aware that replacing American workers with their foreign counterparts can place a company at risk for discrimination claims.  Thus, prior to doing so, employers should consult both employment and immigration counsel and consider having retained workers and/or management involved in the training process of any replaced employee.

Can Employment Discrimination Plaintiffs Survive Summary Judgment?

Contributed by Julie Proscia and Steven Jados

The Seventh Circuit recently affirmed summary judgment for the employer in Miller v. St. Joseph County, a race discrimination case, and in doing so applied what may prove to be a streamlined standard for determining whether employment discrimination plaintiffs can survive summary judgment.

The plaintiff in Miller was a long-time employee of the county’s police department who sought several promotions which he did not receive. He alleged, among other things, that the promotion denials, a temporary assignment he disliked (but which did not change his compensation, benefits or rank), and the fact that he did not receive certain other promotions for which he apparently did not even apply, were all the result of race discrimination.

The court, while noting that it could not overrule the McDonnell Douglas burden-shifting method of proof, and its prima facie elements, instead applied a brief three-part test as a substitute for what the court called the “cumbersome” indirect and direct methods of proof. The three parts are: (1) membership in a protected class; (2) an adverse employment action; and (3) evidence from which “a rational jury could conclude that the employer took that adverse action on account of . . . protected class, not for any non-invidious reason.”

Applying that test, the court noted that there was no evidence of racial slurs or other manifest racial hostility; no evidence that the plaintiff was more qualified than the individuals hired into the positions plaintiff sought; and no evidence that race played a factor in the temporary assignment the plaintiff disliked. In short, the court looked at the evidence the plaintiff presented and saw nothing that could lead a rational jury to conclude that race discrimination occurred—and the court affirmed summary judgment in the employer’s favor as a result.

Now, what does this mean as a practical matter for human resources and management professionals?  It appears to signal the court’s interest in adjudicating discrimination cases on a common-sense basis.  That sounds simple, but whether it actually streamlines the litigation of discrimination cases—especially a case based heavily on circumstantial evidence—remains to be seen.

Bucking the Trend Against Employers – Wisconsin Repeals Law Giving Damages for Discrimination

Contributed by Terry Fox

On April 5, 2012, Governor Scott Walker signed into law Wisconsin Senate Bill 202; an act to eviscerate the Wisconsin Fair Employment Act.  The law removed an employee’s ability to seek and collect either compensatory damages or punitive damages for employment discrimination under Wisconsin law. 

It appears that this legislation will effectively remove a risk to employers that employees will file a state law action, which is generally viewed as easier to prevail upon and less expensive to prosecute and defend.  Employers will now face federal lawsuits for Wisconsin employees.  This action by the Wisconsin legislature does not affect application of federal anti-discrimination laws to Wisconsin employees and employers.  It is unclear whether this repeal will impact pending state law cases. 

Governor Walker is facing a recall vote from the Wisconsin electorate.

EEOC Receives a Record Number of Charges of Discrimination in Fiscal Year 2011

Contributed by Jill Cheskes

The recognized tenet that when the economy is in a downturn, employment claims rise is no more apparent than in the EEOC’s most recent statistics regarding charges of discrimination filed with the agency.  Employers, who are already facing tough economic challenges and searching for ways to make a profit, are faced with a record number of claims by employees and ex-employees. 

In 2011, the EEOC took in 99,947 charges of discrimination, which is the largest number of charges filed in the agency’s 46 year history.  In 2007, before the economic downturn, the number of charges filed was 82,792.  The EEOC also boasted on its web site that the agency took in a record “$364.6 million in monetary benefits for victims of workplace discrimination.” 

For the second year in a row, retaliation claims lead the pack with 37.4% of the charges filed containing a claim for retaliation.  Before 2010, race claims historically were the most frequent type of claim filed.  Race claims were down for the second year in a row and came in at 35.4%.  National origin, religion, age and disability claims are all on the rise as well.

The EEOC has seemingly taken one of two tracks in investigating charges of discrimination.  The first is that they take no action for an extended period of time.  The EEOC has charges that are sitting for many years with no action occurring.  This is frequently attributed to a huge backlog of cases, which should only worsen given the ever-increasing number of charges being filed.

Second, is that they take a hyper-aggressive and broad approach to these investigations by requesting extremely broad information going well beyond the individual complainant at issue.  The EEOC has been increasingly searching for classes to pursue and this is evident in their investigation techniques. 

Both courses of investigation will continue to tax employers’ resources and time and there does not seem to be any chance of significant relief from these claims for employers in the near future.