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Cases to Watch in 2019

“Like sands through the hourglass,” so is the ever-evolving world of labor and employment law.  2019 is starting out with some major cases before the High Court that can have a significant impact on the workforce.  Let’s about some of these issues.

  1. Equal Pay.

Equal Pay took a front seat in 2018.  Today, SCOTUS will discuss whether it will hear Yovino v. Rizo.  The issue in this case is whether the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”  As an interesting aside, the case also deals with whether a deceased judge may continue to “participate” in the determination of a case after his or her death (gasp).

The Ninth Circuit held “any factor other than sex” is limited to legitimate, job-related factors, such as a prospective employee’s experience, educational background, ability, or prior performance.  Relying on prior salary is not sufficient and does not create an affirmative defense.

  1. LGBT Discrimination

Also on the Court’s schedule for today is a trilogy of cases involving whether Title VII’s reach and asks whether the prohibition against sex-based discrimination extends to sexual orientation and gender identity.

In one case, a now-deceased ski instructor accused his employer of firing him after telling a client he was gay.  In another case, an employee alleges he was fired because of his sexual orientation. In the first case, the Second Circuit scrapped precedent and affirmatively held that Title VII extends to sexual orientation.  The Eleventh Circuit disagreed in the latter case.

The gender-based case, R.G. & G.R. Harris Funeral Homes, involves a transgender employee who argues she was terminated from her employment based on her gender identity.  In this case, the Sixth Circuit held “discrimination against employees “either because of their failure to conform to sex stereotypes or their transgender status, is illegal under Title VII.”

These cases create a significant circuit split.  For me, the split signals an issue that needs SCOTUS’s attention.  Thus, I anticipate the court will take these cases.  Of course, I admit I have been wrong before (*ahem* seldom, of course).  We will just have to stay tuned.

  1. Arbitration Agreements

SCOTUS should be announcing its decision in Lamps Plus, Inc. v. Varela soon.  The issue in Lamps Plus asks whether the Federal Arbitration Act precludes using state law principles of contract interpretation to understand commonly used language in a standard form arbitration agreement as authorizing class arbitration. The High Court heard oral arguments in the case last October.

Lamps Plus would address a question left open in Stolt-Nielsen, which held class arbitration is blocked when there’s no “contractual basis for concluding” that the parties to an arbitration agreement agreed to it. That case didn’t address whether courts can infer that such a contractual basis exists in situations like Varela’s where an agreement doesn’t explicitly block class arbitration.

This decision is important because it could impact arbitration agreements currently used by employers throughout the country.

We will update you as we know more.  In the meantime, feel free to contact us for your labor and employment law needs.  602.354.2833 or info@alejandroperezlaw.com

This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

What’s in a name?

Earlier this month, a Missouri-based healthcare provider sent rejection letters to various female job applicants. While I would normally applaud that practice, these letters expressed the company’s policy of not hiring employees with “ghetto names.”

Yes, you read that right!

While the healthcare provider denies sending the notices—it claims it was hacked by a disgruntled employee—this brings to light the very real issue of name bias. Name bias can take several forms. Generally, it deals with biases towards men’s names over female names and prejudices against “Black-sounding,” “Latino-sounding,” or “foreign-sounding” names.

It’s a Real Thing!

Studies have shown name bias is a real thing. A 2012 study published in the Journal of Experimental Psychology revealed employees with easy-to-pronounce names are more likely to receive job offers and promotions. Moreover, job applicants with “white-sounding” names were 50 percent more likely to receive job interviews, job offers and promotions.

There have also been documented cases of individuals receiving more favorable recruitment decisions after changing their names.

Name Bias is a Form of Unlawful Discrimination

While it goes without saying, I would be remiss if I did not point out name bias is a form of unlawful discrimination prohibited by Title VII of the Civil Rights act, as well as certain state and local laws. Under McDonnell Douglas v. Green, 411 U.S. 792 (1973), SCOTUS held a plaintiff state a prima facie case of discrimination by showing four elements: (1) The Employee made an application for the position sought and was qualified; (2) the employee is a member of a Title VII protected group; (3) the employee did not receive a job offer; and (4) the employer continued to look for job candidates with similar qualifications.

If an applicant can establish a prima facie case under this standard, the burden shifts to the employer to advance a non-discriminatory reason for the employment decision.

As with any litigation or EEOC investigation, things can get expensive rather quickly.  Of course, I subscribe to the old adage “the best defense is a good offense.”  Employers should take measures to ensure such biases do not permeate their workplace or hiring practices.

What Can We Do?

I am not going to get into the data breach measures the healthcare provider could have taken to avoid this issue.  We can save that for another blog.  But, let’s talk about some solutions to deal with this name-bias problem:

1. Train management and human resources on recognizing implicit and unintentional biases.

2. Ensure nondiscrimination and harassment policies are specific and address this type of bias.

3. Consider instituting “blind hiring.” This can entail, among other things, redacting candidates’ names from their materials before putting them in circulation.

4. Structure interviews so candidates vying for the same positions are asked the same questions.

5. Make sure your selection criteria is clear and strictly enforced.

6. Keep records as to why certain candidates were chosen for interviews and, ultimately, for the position.

The Law Firm of Alejandro Pérez is experienced in assisting employers to comply with federal, state, and local laws that affect the workplace.  We regularly counsel employers on employment matters and draft thoughtful, inclusive policies that are meant to comply with all federal mandates and protect our clients from litigation.  The Firm also facilitates training on EEO, diversity and inclusion, implicit bias, respectful workplace norms, leadership skills training, and a number of other employment-related issues.

Please contact us to assist you in eliminating name bias–and other biases-from your workplace.  You can reach us at info@alejandroperezlaw.com

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.