Effective Nov. 17, 2023, New York General Obligations Law 5-336 was amended to further restrict employers’ use of non-disclosure or confidentiality provisions in settlement agreements when the factual foundation involves discrimination, harassment or retaliation. Since its enactment, the law has broadly prohibited non-disclosure provisions in agreements to settle discrimination claims “unless the condition of confidentiality is the complainant’s preference.”[1]
On Nov. 17, 2023, Gov. Kathy Hochul signed Senate Bill S.3255, which amends Section 297 of the New York Executive Law by extending the statute of limitations for filing complaints of unlawful discrimination with the Division of Human Rights (DHR) to three years.
In a recent decision, the U.S. Second Circuit Court of Appeals, the federal appeals court covering New York and adjacent states, sought to clarify the federal law standard for evaluating retaliation claims under the principal anti-discrimination statutes including, Title VII, the ADEA and the Reconstruction Era Civil Rights Act. Significantly, the court found that such retaliation claims are evaluated under a separate, more expansive standard than substantive discrimination (including hostile work environment) claims.
On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.
BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon.
In June 2020, the New York Legislature enacted Article 5, Section 75 of the New York Executive Laws, which established the Law Enforcement Misconduct Investigative Office (LEMIO). In response to the nationwide protests following the killing of George Floyd, LEMIO was created to prevent and remedy misconduct committed by officers of New York law enforcement agencies, adding a layer of accountability outside the agencies themselves. The office’s mission is to identify and investigate officer misconduct and assist agencies in improving their policies and practices. It is important to note that LEMIO is meant to supplement, not replace, existing accountability procedures where they are lacking. These changes are intended to increase transparency and accountability surrounding officer misconduct, thereby increasing public safety and trust in law enforcement as a whole.
“How is my hair? Does it look OK?” With employees returning to onsite work, questions regarding employers’ grooming and dress code policies are bound to crop up. When responding, employers should be cognizant of the fact that their dress code and grooming policies must comply with expanding legal protections against discrimination based on race-based hairstyles.
In the wake of the social justice movements and a nationwide push towards greater equality, transparency, diversity and accountability, it is expected that pay equity will be a focus for the Biden administration in the coming year. Pay equity issues are gaining the attention of employees and, in turn, becoming of increasing concern for employers.
On July 12, Governor Cuomo signed a bill amending the New York Human Rights Law to prohibit employment discrimination based on "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles." The term "protective hairstyles" includes, but is not limited to, "such hairstyles as braids, locks, and twists." This amendment took effect immediately upon the Governor's signature.
As previously reported, the elimination of barriers in recruitment and hiring was identified as one of the Equal Employment Opportunity Commission’s six priorities in its 2013-2016 Strategic Enforcement Plan (“SEP”). Accordingly, the EEOC is focusing its enforcement efforts and resources on eradicating both class-based intentional discrimination, as well as facially-neutral recruitment and hiring practices that have a discriminatory effect on particular groups. To this end, the EEOC has been aggressively challenging employers’ use of criminal and credit background checks in recruitment and hiring, alleging that such practices have a disparate impact on certain applicants in protected classes. However, in a significant victory for employers, the EEOC’s efforts were recently thwarted in a decision issued by the United States District Court for the District of Maryland.
In EEOC v. Freeman, the EEOC challenged the defendant’s use of criminal background and credit checks, alleging that, although facially-neutral, the practice had a discriminatory effect on African-American and male applicants. In granting the defendant’s summary judgment motion dismissing the complaint, the court held that the EEOC and their experts failed to identify a specific policy causing an alleged disparate impact and “something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks.” The court further admonished the EEOC’s lack of factual support, stating that:
[b]y bringing actions of this nature, the EEOC has placed many employers in the "Hobson’s choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.
To further underscore the importance of background checks to employers, the court pointed out that ironically, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions.
The Freeman court explained that it is not the “mere use” of background checks that presents Title VII concerns, but rather “what specific information is used and how it is used.” Here, Freeman’s use of criminal and credit checks were not used as automatic exclusions and were conducted only for specific types of jobs. The Freeman court held that the use of these screening tools is a “rational and legitimate component of a reasonable hiring process.”
Although this decision is an important victory for employers defending their right to refuse to hire applicants whose backgrounds call into question their character and qualifications for employment, it is unlikely to stop the EEOC’s enforcement efforts completely. The SEP, together with the EEOC’s April 2012 Enforcement Guidance on criminal background checks, make clear that the EEOC is determined to seriously limit the use of background checks, if not prohibit their use altogether. Therefore, employers should consult with legal counsel to ensure that any use of background checks is both job-related and consistent with business necessity, and that such use does not result in automatic exclusions. Background checks should also be limited only to those positions where there is a direct correlation between the background check and the job involved.
Employers can rest assured that the EEOC’s guidance does not make it a per se violation of Title VII to consider criminal history information. It does, however, send a clear signal that the agency intends to scrutinize employment decisions that are based on an individual’s criminal past. The EEOC stresses that criminal history information may be relevant to both “disparate treatment” claims (where people with the same criminal history are treated differently because of a legally protected characteristic) and “disparate impact” claims (where an employer’s facially neutral policy has a disproportionately adverse impact on a specific protected group).
In the disparate impact context, an employer can avoid liability by showing that the policy at issue is job related for the position and consistent with business necessity. Under the new EEOC guidance, however, an employer will not typically satisfy this showing by merely tying its policy of considering prior criminal backgrounds to its general concern for property or safety. Rather, employers are now expected to conduct a multi-factor analysis to confirm that the underlying policy is appropriately applied to a specific individual.
"Targeted Screens" and "Individualized Assessments"
In its guidance, the EEOC makes clear its position that a policy excluding everyone with a criminal background from employment will violate Title VII because it is not job related and consistent with business necessity. The EEOC states that, at the very least, a policy must be rooted in a genuine nexus between a position and a particular crime. To be valid, such a “targeted screen” must take into account the nature of the crime, the time elapsed, and the nature of the job in question. The EEOC also emphasizes, however, that a targeted screen alone may be inadequate to avoid a disparate impact claim in many situations. It therefore suggests that employers also conduct what it terms an “individualized assessment.”
To complete an individualized assessment in accordance with the new EEOC guidance, an employer must: (1) notify the individual that he or she has been targeted for exclusion because of past criminal conduct; (2) give the individual an opportunity to explain why he or she should not be excluded; and (3) consider any information supplied by the individual to assess whether the practice or policy, as applied, is job related and consistent with business necessity. The EEOC lists several examples of potentially relevant information that should be considered during the individualized assessment, including: possible inaccuracies in the criminal history report; the applicant/employee’s age at the time of the offense; the number of offenses committed; whether similar work has been performed without incident; the applicant/employee’s employment history; rehabilitation efforts; and employment or character references.
Looking Ahead
Although the EEOC’s new guidance does not go so far as to prohibit employers from considering an individual’s criminal history when making employment decisions, it should serve as a reminder that this screening method is rife with potential legal pitfalls. The EEOC’s emphasis on the national conviction rates for certain minority groups suggests that it is predisposed to litigating claims under a disparate impact theory. The EEOC will consider whether the employer followed the several steps described in the new guidance to assess whether a screening policy is truly job related for a particular position and consistent with business necessity.
In addition, it is important for employers to remember that several states and municipalities have passed laws to prohibit discrimination on the basis of an individual’s criminal history. For instance, the New York Human Rights Law and Corrections Law make it unlawful to base employment decisions on prior arrests or criminal convictions. An exception exists that allows an employer to deny employment when the underlying conviction directly relates to the job or when employment would pose an unreasonable risk to property or the safety or welfare of specific individuals or the general public. Before relying on this exception, however, employers must consider a variety of factors, including:
the public policy of New York State to encourage employment of persons with criminal records;
the specific duties and responsibilities of the position;
the bearing the underlying offense will have on the person's fitness or ability to perform those duties and responsibilities;
the time elapsed;
the age of the person when the offense was committed;
the seriousness of the offense;
any information concerning the person's rehabilitation and good conduct; and
the legitimate interest of the employer in protecting property or safety or welfare of individuals or the public.
By conducting this analysis, New York employers will also very likely be able to satisfy the EEOC’s expectations as stated in its new guidance. To better insure compliance, however, it is strongly recommended that employers contact labor and employment counsel when assessing internal policies relating to the use of criminal history information in connection with employment decisions.
Recent complaints filed by the Office of Federal Contract Compliance Programs ("OFCCP") and the Equal Employment Opportunity Commission ("EEOC") against employers suggest that those federal agencies are aggressively pursuing allegations of discriminatory hiring practices.
On November 29, the OFCCP filed an administrative complaint against Cargill Meat Solutions, a federal contractor, alleging that the company violated Executive Order 11246, by favoring Asian and Pacific Islander applicants over applicants of other races and by favoring male applicants over female applicants. In the complaint, the OFCCP alleges that over 4,000 qualified applicants were unlawfully rejected based only on their race or sex. Significantly, the OFCCP seeks cancellation of the company's government contracts worth more than $550 million.
In the last several months, the EEOC has also filed two high-profile lawsuits against employers for alleged discriminatory hiring practices. In September, the EEOC filed a lawsuit against Bass Pro Shops in the U.S. District Court, District of Massachusetts, alleging that the company engaged in a pattern or practice of failing to hire African-American and Hispanic applicants. In the lawsuit, the EEOC alleges that managers made overt racist comments acknowledging the company's discriminatory hiring practices, and stated that African-American applicants did not fit their corporate profile.
In October, the EEOC filed a lawsuit against Texas Roadhouse in the U.S. District Court, Southern District of Texas, alleging that the company systematically failed to hire individuals over 40 years of age for "front of the house" positions. In the lawsuit, the EEOC alleges that only 1.9% of the "front of the house" employees are over 40 years of age (which the EEOC believes is a statistically significant disparity when compared to the general population, industry statistics, and the applicant pool) and that the company instructed managers to hire younger employees by emphasizing youth in its hiring training.
At this point, these enforcement actions by the OFCCP and EEOC have not resulted in any final determinations or judgments. Nevertheless, these enforcement actions serve as a useful reminder for employers of all sizes to continually monitor their hiring practices and periodically train managers who have hiring responsibilities to ensure compliance with federal, state, and local laws.
