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Monday, April 8, 2013

Q&A: Hiring Practices on the NAACP Legal Defense Fund’s Radar

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ReNika C. Moore, a director at the NAACP Legal Defense & Educational Fund, Inc. (LDF), offers an overview of some pending litigation and hiring policies that have gained the attention of the legal advocacy group.

"LDF fought for the passage of Title VII of the 1964 Civil Right Act, and while we as a society have achieved real progress for African Americans in the workplace, African Americans still face significant obstacles to equal employment opportunities--many of the obstacles are structural," Moore said.

Bloomberg BNA: Are there any issues or topics regarding racial bias or harassment in the workplace that are floating under the radar, but deserve greater public attention?

Moore: LDF is concerned about enduring systemic barriers that African Americans face in employment. During the Great Recession, African Americans were more likely to be unemployed and for longer stretches than white workers. 

We are particularly concerned about the overuse and/or misuse of hiring screens that eliminate qualified African-American job seekers from consideration for employment, such as overly broad criminal background checks that consider things like arrests that never resulted in a conviction or old or minor offenses without giving an applicant who has paid his or her debt to society the opportunity to work.

This also includes a credit history, which has not been shown to provide any useful data about an applicant's suitability for employment generally or for a particular position.

Research shows that a credit check is more likely to be negative due to catastrophic life events like large medical costs or divorce than anything else. 

In addition, we are concerned about screening requirements that job applicants be currently employed, because African Americans are disproportionately unemployed and slow to be rehired as the economy recovers. 

Bloomberg BNA: What are some court cases that LDF is closely following?

Moore: We are watching three cases currently pending before the U.S. Supreme Court. In Oxford Health Plans LLC v. Sutter, the Court's ruling could affect an employee's ability to litigate class action claims and expand employers' power to force employees to arbitrate. 

We are very concerned that federal courts are steadily narrowing plaintiffs' ability to sue to challenge and correct policies or practices that systematically discriminate against African Americans or other protected groups through rulings like AT&T Mobility LLC v. Concepcion and most recently Parisi v. Goldman, Sachs & Co., in the U.S. Court of Appeals for the Second Circuit.

We are also watching Vance v. Ball State University, in which the Court has been asked to decide who is a supervisor within the meaning of Title VII.

Three U.S. circuit courts of appeals and the Equal Employment Opportunity Commission have said that Title VII applies to harassment by those whom the employer vest with authority to direct or oversee a plaintiff's daily work, while three other U.S. circuit courts of appeals have limited Title VII's application only to those harassers who have the power to hire, fire, demote, promote, transfer or discipline the plaintiff. 

There is also University of Tex. Southwest Medical Center v. Nassar, which is now pending before the Supreme Court. The petition raises the question of whether Title VII's retaliation provisions, and other anti-discrimination statutes that use similar language require a plaintiff to prove but-for causation, or instead require only proof that the employer had a mixed motive.

Bloomberg BNA: Have you recently filed any amicus briefs addressing racial injustice in the workplace? And if so, what sparked LDF's interest about the litigation?

Moore: In the past year, we have filed amicus briefs in several employment-related matters including Vulcan Society v. City of New York, in the Second Circuit.

The case is a long-running class action against the New York City Fire Department (FDNY) for its decades-long discrimination against Black and Latino firefighters and applicants, which includes the FDNY's use of a hiring exam that disproportionately blocked African-American and Latino firefighter applicants from working for the FDNY.  

Our brief argued that the Second Circuit should uphold the district court's decision finding the FDNY liable for intentional discrimination and disparate impact violations based on its use of the two exams and LDF supported the court's ordered relief. 

Bloomberg BNA: Besides setting a precedent, what other factors in a case does LDF consider when deciding whether to file an amicus brief?

Moore: LDF works to ensure that African Americans and other racial minorities have the same opportunities to work, be paid, and advance in their jobs as all other workers regardless of their race. 

As I said, we believe that while African Americans still are subjected to forms of intentional discrimination because of their race, more wide-spread--but often harder to prove--are facially neutral employment practices that have a disparate impact on African Americans but that are not job-related and serve no legitimate business function. 

Bloomberg BNA: Any final thoughts on combating racial bias and harassment in the workplace?  

Moore: Employers must be mindful of the make-up of their workforce and of practices that adversely affect workers of color and women. For example, LDF is concerned about the growing use of online networks like LinkedIn and Facebook for recruiting.

These networks are essentially technologically-advanced versions of traditional word-of-mouth recruiting and historically reinforced "good old boy" networks because research shows that employees typically refer candidates of the same race and gender. Because African Americans are disproportionately unemployed and under-employed, they risk being shut out of opportunities for competitive jobs. 

Employers who rely heavily on internal recruiting methods should ensure that they are drawing on a diverse pool of candidates and that such recruiting and hiring practices do not adversely affect African Americans or other protected groups in violation of Title VII. 

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If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.

 

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