The Civil Rights Office of the United States Department of Transportation ("DOT") has a written policy that helps its employees understand how one can tell if conduct is "unwelcome."  I like the DOT’s policy because it gives employees some practical advice on how to convey that inappropriate sexual comments or conduct is unwanted.  

The policy states that "Only unwelcome conduct can be sexual harassment.  Consensual dating, joking, and touching, for example, are not harassment if they are welcomed by the persons involved." 

"Conduct is unwelcome if the recipient did not initiate it and regards it as offensive.  Some sexual advances (“come here Babe and give me some of that”) are so crude and blatant that the advance itself shows its unwelcomeness.  In a more typical case, however, the welcomeness of the conduct will depend on the recipient’s reaction to it."

Outright Rejection:  The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable.  It is very difficult for a harasser to explain away offensive conduct by saying, “She said no, but I know that she really meant yes.”  A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct.  A woman who shakes her head “no” and walks away when asked for a date has made her response clear.

Ambiguous Rejection:  Matters are more complicated when an offended employee fails to communicate clearly.  All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known.  A woman asked out for a “romantic” dinner by her boss may say, “Not tonight, I have a previous commitment” when what she really means is “no way, not ever.”  The invitation is not inherently offensive, and the response leaves open to question whether the conduct was truly unwelcome.

Soured Romance:  Sexual relationships among employees often raise difficult issues as to whether continuing sexual advances are welcome.  Employees have the right to end such relationships at any time without fear of retaliation on the job, so that conduct that once was welcome is now unwelcome.  However, because of the previous relationship, it is important that the unwelcomeness of further sexual advances be made very clear.

Sexual harassment investigations sometimes fall within a gray area where the comments were "boorish" or "childish."  It may not be readily apparent if the conduct was consensual, or if the Complainant was truly offended but the Complainant neither did or said anything to convey to the accused that he/she was offended and that the harasser should stop.  A sexual harassment investigator will need to probe into the past relationship of the parties to determine if they have had past interactions which might have led the accused harasser to believe that his/her conduct was welcomed.  Soured romantic relationships, especially if they are on-again, off-again pose a particular set of problems that require close scrutiny by the sexual harassment investigator.     

"Neutrality" is the name of the game.  In the recent California case of Nazir v. United Airlines, Inc., the court gave strong cautionary advice about choosing the right workplace investigator.  

The Nazir court raised the point that this particular employer (United Airlines) had extensive rules and policies about the investigation of employee complaints.  One of United’s policies stated that if “there is any reason you would not be perceived as an unbiased investigator, choose another investigator.”  In the Nazir case, a company management employee (who had some prior negative interactions with the complainant in the workplace) took the lead in conducting the internal investigation.  He also engaged a co-employee to assist him in the investigation; however, this "assistant investigator" described himself as a labor relations person, who had been assigned to assist the lead investigator in the facilities maintenance department.  The assistant investigator attended most staff meetings in the lead investigator’s department and considered the lead investigator to be “an internal customer” of his, that is, a person he "served", according to the Nazir court.

Based on the underlying facts the Complainant alleged against the lead investigator, the Court found that the "lead" investigator was a person "who at least inferentially had an axe to grind" with the Complainant.  Further, the "assistant" investigator was someone who worked in a capacity of "serving" the lead investigator; thus, the Nazir court held that "such an investigation can itself be evidence of pretext. . . . [and] such investigation could “exploit a disciplinary process predisposed to confirm all charges.”

The Nazir court juxtaposed the two investigators (described above) against the investigator used in another California case, Silva v. Lucky Stores, Inc. (1998).  In the Silva case, the investigation was "by a well-trained human resources representative, who had no connection with the accused employee. The investigator carefully followed Lucky’s written policy, and interviewed no fewer than 15 employees during a month-long investigation.  And in doing all that, the investigator asked, “relevant, open-ended, non-leading questions.”

How do you, as an employer, avoid this problem?  

  • If you are going to choose a company employee to conduct the investigation, in lieu of going to an outside investigator, be sure to pick someone who has never been involved in any prior negative incidents with the Complainant.  Further, the investigator should not be anyone who "witnessed" any of the incidents alleged by the Complainant because he/she is likely to be automatically biased.  
  • Select an investigator who is not in the Complainant’s "chain of command"— either up or down.  If the investigator reports to the Complainant, the investigator’s neutrality is compromised.  In short, you cannot investigate your boss without worrying that you can be fired if you make findings against your boss.  Similarly, even where the accused employee reports to the investigator, a supervisory investigator may be inclined to bury facts under the rug because the supervisor may not want to have his supervisory/management skills tarnished by a finding that a bad situation was allowed to occur or fester under his/her watch. On the other hand, a supervisor who runs a great department with no employee problems is looked upon favorably by upper management.
  • In short, you want someone who is far enough from the situation to be impartial and who has experience investigating these types of issues.

The California Supreme Court in Cotran v. Rollins Hudig Hall International, Inc. established what constitutes "good cause" to terminate an employee under an implied contract that requires "good cause" to terminate.  The Court held that in such cases an employer does not have to prove that allegations of misconduct are true, just that the employer fairly formed a reasonable belief that they were true.  Thus, the employer must show not just that it honestly believed the charges, but also that it was reasonable to believe them.  

An element of such reasonableness is "an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond."  Although the Cotran Court did not expressly describe the essentials of an adequate investigation, the Court set some broad parameters — the procedure may be less formal than a civil trial, but the fact finder should not jump to a conclusion before the end of the process.  That begs the question– When have you reached the end of the process?  An investigation must be "thorough" to reach the end of the process.

What makes an investigation "thorough"?  

Here are a few starters:

  • Get all relevant documentation from ALL sides.  This includes documentation related to the comparator employees, if you are investigating a disparate treatment claim.  (Note:  Due to privacy rights, do not seek medical/diagnosis information of comparators in disability disparate treatment cases.  In that case, try to obtain documentation of the work-related physical limitations of the comparators.  That is probably as close as you can get.)
  • Get the complete story from the Complainant before you interview anyone else, assuming you are able to interview the Complainant.  If the Complainant is already represented by an attorney, you will need to make a request for an interview with the attorney.  Rarely is this request denied, but it can happen.  In that case, you have to go on any written or verbal complaints or statements the Complainant has made to co-workers, supervisors, Human Resources, or others.  You want to have the full story from the Complainant before you interview the accused employee(s).  
  • Interview all witnesses identified by the Complainant–unless a witness is clearly irrelevant and then document with an investigator’s note the reason you did not interview that witness. For example, when I ask the Complainant to identify all the witnesses that the Complainant would like to be included in the investigation, I also ask the Complainant to state what he/she expects to be the factual information gleaned from each named witness.  If the "performance" of the Complainant is not an issue in your investigation, then you do not need to interview a named witness whose only knowledge is how great the Complainant was at his/her job.
  • Document the amount of time you spend interviewing each witness.  Someone recently complained to me that he was working on a case and his investigator had only spent 10-15 minutes with one of the major players.  He was worried how he was going to handle the defense of this case when the investigator had spent so little time with this particular witness. So, if you are taking time and getting the whole story from your witnesses, you want to have documentation of your time.  
  • Interview witnesses to whom the Complainant may have made contemporaneous statements.  Since this is a possible exception to the hearsay rule, and since you may determine this information to be trustworthy, for whatever reason, this type of information should be obtained and documented in the investigation.  You can balance it with your other evidence and decide how much weight to give it later.  So, when interviewing your Complainant, be sure to ask if he/she contemporaneously reported the incident to any peers or third parties, as this may be evidence that the harassment or alleged incident occurred.   
  • Sometimes the witnesses may even be former employees, customers, students, clients. Understandably, the employer may sometimes be reluctant to get their customers involved in an internal employee issue, so in that case, you have to weigh how important the information is against the employer’s desire to not unnecessarily involve customers in their private personnel matters.  Can the information be obtained from another source without involving a customer?  Is the information to be sought duplicative of information you already know?   If so, you may not need to involve a customer.  
  • Follow the same note-taking procedure for all of your witnesses, including the Complainant and the accused employee.  I now prefer to tape record my interviews and not take notes, unless I just jot down a few key points to remind me to get a document or to interview someone I had not known of.   There are pros and cons on tape recording interviews, and that will be the subject of a separate blog someday soon.
  • You may need to circle back and re-interview witnesses to clear up new issues that have come up with other witnesses.  I sometimes tell witnesses right at the end of the interviews that I made need to call them back later for follow-up questions if something new occurs to me.  Sometimes you may need to only ask one follow-up question, which might be handled quickly in a telephone call.  However, if you have a large amount of follow-up questions on significant issues, a follow-up interview in person is advised.
  • Since I prefer to tape record interviews, I have the complete statements of the witnesses preserved.  I try to avoid too much paraphrasing in my reports because that can be the subject of attack if you get it wrong.
  • The EEOC has issued guidance on the minimum questions that should be asked of the Complainant, alleged harassers, and third party witnesses.  These questions should be asked, if relevant to the facts of your particular type of investigation, to help insure thoroughness.

According to the EEOC Notice of Proposed Rulemaking on Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), GINA is a federal law that prohibits discrimination in health coverage and employment based on genetic information.  GINA, together with already existing nondiscrimination provisions of the Health Insurance Portability and Accountability Act, generally prohibits health insurers or health plan administrators from requesting or requiring genetic information of an individual or an individual’s family members, or using such information for decisions regarding coverage, rates, or preexisting conditions. GINA also prohibits employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. The part of the law relating to employment (Title II) will take effect on November 21, 2009.

Once GINA takes effect, it generally will prohibit discrimination based on genetic information in connection with health coverage and employment, no matter when the information was collected.

GINA defines genetic information as information about:

  • An individual’s genetic tests (including genetic tests done as part of a research study);
  • Genetic tests of an individual’s family members (defined as dependents and up to and including 4th degree relatives);
  • Genetic tests of any fetus of an individual or family member who is a pregnant woman, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology;
  • The manifestation of a disease or disorder in an individual’s family members (family history); or
  • Any request for, or receipt of, genetic services or participation in clinical research that includes genetic services (genetic testing, counseling, or education) by an individual or an individual’s family members.
  • Genetic information does not include information about the sex or age of any individual.

Who is Subject to GINA?

GINA will apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.

What Employment Practices are Prohibited?

GINA prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.

What Safeguards Must an Employer in Possession of Genetic Information Take?

Employers must treat the information the same way they treat medical information generally. They must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. A covered entity may keep genetic information in the same file as medical information subject to the ADA.

Does GINA Prohibit Harassment Based on Genetic Information?

GINA does not directly address the issue of harassment claims. However, in describing the prohibited practices under Title II, Congress adopted language similar to that used in Title VII of the Civil Rights Act of 1964 and other equal employment opportunity statutes, evincing its intent to prohibit discrimination with respect to a wide range of practices, including harassment.  So, the answer is probably "yes."  

Can an Employer Still Obtain Genetic Information After Making a Job Offer?

GINA limits an employer’s ability to obtain genetic information after making a job offer. Although the ADA currently permits a covered entity to obtain family medical history or conduct genetic tests of job applicants once an offer of employment has been made, provided this is done for all entering employees in the same job category, such action will be prohibited upon the effective date of GINA.

What is the Possible Liability Exposure?

The cap on combined compensatory and punitive damages (excluding past monetary losses) ranges from $50,000 for employers with 15-100 employees to $300,000 for employers with more than 500 employees.

Additional EEOC guidance is online.  EEO investigators need to be aware of the EEOC’s proposed regulations (as well as California’s state law prohibiting genetic testing–Cal. Gov’t Code Section 12940(o)), including a few possible employer exceptions, such as, FMLA, inadvertent disclosures by the employee, wellness programs, etc. (see 29 CFR Part 1635.8, "Acquisition of Genetic Information").  But, the bottom line is, if an employer gets this information, put it in a separate medical file (such as an existing ADA file).  

When Will We See the "Final Regulations" by the EEOC?

Final Regulations by the EEOC (concerning Title II only) will be issued by November 21, 2009, according to Peggy R. Mastroianni, Associate Legal Counsel, EEOC, when she recently gave a presentation on GINA at an EEOC Training Seminar in Pasadena, CA.

Are you an employer who has ever wondered how you can possibly accommodate a particular disability of an employee?  The disability is just so severe or unusual (or a "mental disability" is involved) that you can think of no way to accommodate it.   Never fear–at least not yet.  Try calling the Job Accommodation Network ("JAN") at 800-526-7234.  As an attorney counseling management, I have often called the JAN myself and been surprised at the possible solutions they have suggested to accommodate an employee’s disability. It’s always worth at least the free phone call.  

You should also know that the U.S. Department of Labor’s Office of Disability Employment Policy ("ODEP") has awarded a cooperative agreement to Cornell University’s Employment and Disability Institute, School of Industrial and Labor Relations in Ithaca, N.Y., to establish a national technical assistance center for employers on employment of people with disabilities.  The purpose of the center will be to conduct innovative research, assist ODEP in developing demand-side policy, and share best practices with employers on the recruitment, hiring, retention, and advancement of people with disabilities.

"Employers must create workplace cultures in which employees with disabilities are as fully integrated and valued as those without disabilities," said Assistant Secretary for Labor for Disability Employment Policy Kathy Martinez.  "The national technical assistance center will be designed to identify how employers can change expectations and open the path to good jobs for people with disabilities."

Cornell University’s Employment and Disability Institute, School of Industrial and Labor Relations will receive $1.6 million to lead a consortium for the center, which will include the AFL-CIO Center for Green Jobs, the Altarum Institute, the Conference Board, the Institute of Educational Leadership, the National Business and Disability Council, Rutgers University’s John J. Heldrich Center and the U.S. Business Leadership Network.  A 12-month period of performance is in effect on this cooperative agreement.  It is not clear when they will be handling employer requests or what the procedure will be.  We’ll stay tuned.

Currently, employers can also obtain ADA Technical Assistance from the National Network of ADA Centers at  800-949-4232, or from Cornell’s "Employment and Disability Institute".  California employers can also obtain free "accommodation" advice from the Disability and Business Technical Assistance Center (Pacific ADA Center) based in Oakland, CA, online or at 800-949-4232.

The Equal Employment Opportunity Commission ("EEOC") is getting out the word on how it views the new Amendments to the ADA.   Peggy Mastroianni, Esq., Associate Legal Counsel of the EEOC, Washington, DC, office recently spoke to lawyers and human resources professionals in Pasadena, CA.  I attended the EEOC Training Institute’s seminar, and here is a portion of what Attorney Mastroanni (whose job it is to help the EEOC interpret what EEO statutes mean for the public and EEOC employees) said about the ADAAA.

She stated that the amendments changed the definition of "disability," but do not change anything about the merits of, or substance of, the law or how to accommodate an employee. Thus, once an employer determines someone is covered by the ADA (is disabled), everything else stays exactly the same.   However, the amendments clarified existing law that if an employee is “regarded as” disabled, the employee is not entitled to accommodation.

Broadened Definition of “Disability”:  She noted that California law already had this broad definition of disability a long time ago.  Originally, the ADA said that all you needed was an “impairment” (easy to prove by an x-ray or prozac prescription) and "substantially limits" a major life activity.  But, federal courts had been ruling that “substantially limits” required a high showing of limitations by the employee.  Attorney Mastroianni referred to the Sutton trilogy of U.S. Supreme Court cases from 1999.  

  • First case:  employee had poor eyesight, but vision was corrected with eyeglasses.  
  • Second case:  employee had hypertension, but took medication for the condition.  
  • Third case:  employee had monocular vision, but was able to train his brain to address his deficits.

All employees had taken "mitigating measures," so did they have a disability?   Did they have a condition that "substantially limited a major life activity," and is that question to be answered in light of their mitigating measures?   Attorney Mastroianni noted that the EEOC and 9 out of the 10 federal circuit courts held that an employer/courts, etc. should not even consider mitigating measures at all in determining whether an employee is disabled.  Only 10th Circuit Court of Appeals was in disagreement and the U.S. Supreme Court adopted that view.  Thus, courts were holding that diabetes with insulin was not a disability; epilepsy with medication and no seizures in years was not a disability, etc.

In the 2002 case, Toyota Motor Mfg., Ky. v. Williams, where the employee had tendonitis (which had developed from applying chemicals all day to the tops of cars), the U.S. Supreme Court said that proving a disability is a "demanding standard"–even though the ADA statute itself repeatedly says it is to be "interpreted broadly."

Attorney Mastroianni notes that Congress partially blamed the EEOC because the EEOC’s own regulation defines “substantially limits" as “substantially restricts,” which was inconsistent with Congressional intent.  So, the bottom line concerning mitigating measures is, you cannot look at an employee’s mitigating measures to determine whether he/she has a disability (except where the mitigating measure is ordinary corrective lenses).  

What about "episodic" medical conditions, such as, Multiple Schlerosis, Epilepsy, Bi-polar Disorder, or Asthma?  Are these episodic conditions "disabilities"?  Yes, if they are "substantially limiting" a major life activity while the episode is occurring.   

What if the condition is in remission (for example, cancer)? Yes, if the employee would be substantially limited if it (the cancer) were to recur, then it is a disability.  

This change in the federal law will no doubt affect California state law cases where these gray areas may be at issue.   Employers should insure that their managers are aware of these changes. Workplace investigators should be on the look out for revised EEOC regulations to make sure these claims are correctly investigated and that their findings are consistent with the new law. 

The question of "what is religion?" has been litigated extensively.  What do you think about these groups? Rastafarian, Wiccan, Church of Marijuana, Voodoo, Atheism, Ethical Culture Society, Church of Body Modification?  

According to the EEOC Technical Assistance Training Seminar I attended last week in Pasadena, "religion" is defined as follows:

A sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God.

  • Religion includes not only traditional organized religion, but also "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." (Note: this would cover "atheism".)

Some courts say that religion refers to ultimate ideas about life, purpose, death, including right and wrong.

I once investigated a religious discrimination case where the female employee refused to enter the male supervisor’s office to receive an "official discussion" (the first step of progressive discipline for this employer) for something she had done wrong at work. When she repeatedly refused to come into the supervisor’s office, she was given a "letter of warning" for insubordination for refusing to come into his office to receive her official discussion.   When she filed her EEO claim alleging "religious discrimination," she identified her religion as follows:  "My husband and I vowed to never be alone in a room with a person of the opposite sex."   Does that spousal vow constitute a "religion"?  Personally, I highly doubt it.  However, I could see this employee arguing that her articulated religion falls within the second bullet point above:  "a moral or ethical belief as to what is right and wrong which is sincerely held with the strength of traditional religious views."  

As an EEO investigator, it is not always easy to predict what a court might say on this question. However, the EEO investigator does need to probe all of these facets of what courts believe make up a "religion" and the investigator should probe into whether the belief is "sincerely held" by looking at the employee’s prior conduct for consistency (or lack of) regarding the "belief" or whether something else is truly motivating the employee’s conduct or religious accommodation request.

According to the EEOC presenter, Michael J. Farrell, Esq., Supervisory Trial Attorney of the EEOC Los Angeles District Office, religion does NOT include:

  • Practice or espousal of social, political, or economic philosophy.
  • Personal preference.
  • Some cases identify single dimensional beliefs as not constituting a religion, such as, "Church of Marijuana."

According to Attorney Farrell, an employer can ask for the employee to corroborate his claims of religious beliefs, and of course, the employer can always challenge whether the beliefs are "sincerely held."   See my prior post on "sincerely held beliefs."

I recently attended an EEOC Training Seminar in Pasadena where Maurice Emsellem, Esq., Director of the Second Chance Labor Project and National Employment Law Project provided an enlightening discussion on how criminal background checks have a disparate impact on people of color, California African American job applicants in particular.  An interesting fact is that about one in five adult Californians has a criminal record on file with the State.  You can view one of his Powerpoint Presentations to see the work reentry challenges these applicants face in California (19.4% of the Nation’s total).  

According to Attorney Emsellem, one of the main problems is many employers have "blanket prohibitions" against hiring anyone with any kind of a criminal record, no matter how old the conviction and no matter what the prior offense was.

Along these same lines, the EEOC has posted some guidelines about employers using "conviction records" as a screening method.  Workplace investigators should review these EEOC guidelines prior to undertaking the investigation of a "failure to hire" claim.  The EEOC policy strictly limits consideration of prior criminal convictions.

  • Business Necessity Defense:  Employers must justify employment decisions based on convictions, as follows:  
  1. The conviction must be "job-related" taking into account the nature and gravity of the offense or offenses;
  2. The nature of the job held or sought; and 
  3. The time that has passed since conviction and/or completion of the sentence.
  • Rejected Defense:  Employer’s argument that it has a significant representation of that minority race in its existing workforce (the "bottom line" defense) is not a valid defense to a disparate impact claim.   Connecticut v. Teal, 457 U.S. 440 (1982).  

Footnote 6 of the EEOC Guidelines states:

The [EEOC’s] revised business necessity analysis follows a decision by the United States Court of Appeals for the Eighth Circuit in the Green v. Missouri Pacific Railroad Company case. Green, 523 F.2d 1290 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In that case, the court held that the defendant’s absolute policy of refusing employment to any person convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants and was not justified by business necessity. On a second appeal in that case, following remand, the court upheld the district court’s injunctive order prohibiting the defendant from using an applicant’s conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as a factor in making individual hiring decisions as long as the defendant took into account "the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977) (emphasis added).

Accordingly, EEO investigators should be aware of the need for an employer to make "individualized hiring decisions", based on the three criteria delineated by the EEOC in its guidelines, rather than utilizing a "blanket prohibition" of applicants with prior convictions.

Yesterday, a fellow employment law blogger, Jon Hyman of the Ohio Employer’s Law Blog, made an interesting post.  Sexual orientation discrimination by an employer is still legal in Ohio, so some creative plaintiff’s lawyers in Ohio have argued that the employers’ actions constituted religious discrimination because the plaintiff employees’ lifestyles did not comport with their employers’ conservative religious views.  

For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.  However, Pedreira also sued for religious discrimination claiming that living openly as a lesbian was not in line with her employer’s religion and that she was terminated because she did not hold the employer’s religious belief that homosexuality is sinful.  The 6th Circuit disallowed the employee’s religious discrimination claim.

As another example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed an effeminate gay man to bring a sexual harassment claim based on allegations that his co-workers called him names such as Princess and faggot.  However, Prowel also sued for religious discrimination claiming that his co-workers harassed him because his homosexuality was against their religious views.  The 3rd Circuit disallowed the religious discrimination / harassment claim.

As we know, sexual orientation harassment and discrimination are illegal under California state law, but according to Change.org, sexual orientation discrimination remains legal in 29 other states.   It also remains legal under federal law until Congress passes the proposed Employment Non-Discrimination Act of 2009 ("ENDA").  

So, what is the status of the ENDA?  It was introduced into the House on June 19, 2009, by Massachusett’s Democrat Barney Frank, and on July 23, 2009, it was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.  

Although sexual orientation discrimination and harassment is already illegal in California, awareness of the ENDA will be crucial for workplace investigators who handle EEO investigations for federal employers, agencies, and contractors.

A benefit of using employment applications in hiring is the ability of the employer to directly ask an applicant if he/she has a criminal history that would show up if a thorough background check was conducted, according to Lester S. Rosen of Employment Screening Resources in his August 2009 article in the Lorman Education Service Labor and Employment Law Update Newsletter.

He states that "one problem is that many employers use language that is either too narrow, too broad, or too ambiguous to successfully accomplish this," and each of these errors may lead to legal problems or bad hires. This post addresses the job application that is "too narrow."

According to Attorney Rosen:

"An example of a question that is too narrow is to only ask about felonies.  Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious.  Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state."

Personally, I have had this issue come up in an EEO investigation, but in the context of an employer learning about a criminal conviction after the employee was hired.  It should be noted that "having a prior criminal record" is not a protected class under any EEO laws, thus, it is not something that normally would trigger an EEO investigation.  However, this is an issue that can creep into any workplace investigation.  For example, it may come up in a "mixed motive" case where an employer based its employment decision on a legitimate business reason, but the employer contemporaneously "discovered" a past conviction of the affected employee.

A number of limitations exist under state and federal law concerning what an employer may legally ask about or "discover" concerning an applicant’s or employee’s criminal record. Under California law, an employer who knowingly violates some of these rules could be unwittingly committing a misdemeanor. 

California Labor Code Section 432.7 prohibits employers from asking about an arrest or detention that did not result in a conviction. There is an exception for certain arrest records when the applicant is applying for work at a health care facility and would have access to patients, drugs or medication.  Further, California law limits the consideration of any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed when making employment decisions.

An employer should consult with its attorneys on how to most broadly draft this question on an employment application without crossing the line.