In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”). The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire. With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination. Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.
We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.
All HR professionals know that having candidates complete an employment application is a very important step in the hiring process. Employment applications not only collect employment history and educational information on potential candidates, but can also be used to inform applicants of the company’s equal employment opportunity and at-will employment policies. Even if an employer requests that candidates submit a resume for a position opening, the completion of an employment application at the interview meeting should be standard hiring practice for all companies.
This shouldn’t be a newsflash, but employers have been performing background checks as part of the hiring process for quite a long time. Lately, the practice has become even more common, since information is more readily available in the internet age. Most employers use these checks to help ensure they hire the best qualified employees; some employers are required to use them under federal or state regulations governing their industries.
Employers who have yet to put the Genetic Information Non-Discrimination Act (“GINA”) on their radar should probably re-consider their priorities. The Equal Employment Opportunity Commission (“EEOC”) is already at the point where the agency isn’t just bringing suits to enforce violations of that law, it is now settling them.
The Equal Employment Opportunity Commission has taken the position that an employer cannot use credit history background checks unless the credit screening is job-related. This position, however, is based upon an adverse impact theory – in other words, that an employment practice neutral on its face is unlawful if it disqualifies a disproportionate number of members of one protected class, as compared to other groups, without being sufficiently related to successful job performance.
All U.S. employers are required to comply with the federal regulations requiring verification of the employment eligibility of all workers. Verification is made by having every employee complete a Form I-9 (Employment Eligibility Verification Form). Failure to complete the process can result in fines levied against an employer, and in cases involving willful refusal to comply, criminal charges can be brought against the individual(s) within the company responsible for compliance.