Supervisor’s Comment About Employee Was Not Evidence Of Age Discrimination

An IBM employee with a spotty performance record claimed his firing was the result of age discrimination.  As evidence, he produced a text message between two HR managers at IBM in which one asked about the employee’s “shelf life.”  The fired employee also claimed that an employee retention program at IBM called “Project Blue” was an allusion to blue rinses used by older people.  After being sued, IBM denied the allegations of age discrimination and claimed the employee’s firing was the result of his poor performance record.

A federal appeals court in Oklahoma recently found in favor of IBM and dismissed the employee’s age discrimination case.  The appeals court acknowledged that the “shelf life” comment could be interpreted as an age bias statement, but there was a more innocent explanation for why the HR manager used that phrase relating to the employee’s pending billable workload that the court found more plausible.  And the court outright rejected any age bias associated with the name “Project Blue,” given that IBM is sometimes referred to as “Big Blue.”

While IBM ultimately prevailed, this case is a good example of how managers who handle employment matters need to be extra careful about what they put in writing and be sensitive about how phrasing that is intended as innocuous could be interpreted as being discriminatory.

Declan Leonard is a managing partner at DC regional business law firm, Berenzweig Leonard, LLP. Declan can be reached at dleonard@berenzweiglaw.com.

EEOC’s Policy On Employee Criminal Records Scrutinized

The Equal Employment Opportunity Commission (EEOC) announced last year a new enforcement guidance under Title VII of the Civil Rights Act of 1964 to employers regarding the use of arrest and convictionrecords in employment decisions. Though there is no federal law prohibiting an employer from asking about arrest and/or conviction records, this recent guidance informed employers that even a neutral and uniformly applied “policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some minority groups protected under Title VII, and may violate the law if not job related and consistent with business necessity.” If a background check is in fact necessary, the EEOC recommended that the policy at least consider “the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded.”

This guidance left employers in quite a dilemma, as on one hand if employers continued to uniformly use neutral background checks on all employees, they may run the risk of being subject to a disparate impact lawsuit. On the other hand, refusing to conduct background checks may be problematic as they have played a vital role in enabling employers to comprehend employees’ criminal history in an effort to avoid liability for criminal or fraudulent acts committed by employees and/or avoiding claims of negligent retention.

Faced with this predicament, a recent federal court in Baltimore cast serious doubt on the EEOC’s background check guidance. In the case, the EEOC filed a lawsuit against a corporate events provider that had a uniformly applied policy of running background checks on all prospective employees prior to commencing employment. The EEOC challenged this policy claiming that it had a disproportionate effect on minorities due to the higher statistical incarceration rates for minorities. The court dismissed the case on summary judgment in favor of the company due to the unreliability of the EEOC’s witnesses; however, the judge went out of his way to state his strong disdain for the EEOC’s guidance. Specifically, the judge noted that the EEOC’s guidance places employers in an unworkable position due to the inherent risks that can come from ignoring criminal history checks and employers should not have to second guess their decision to obtain fundamental information on their potential workers.

Although this opinion casts doubt on the EEOC’s enforcement of background checks, this opinion does not affect the guidance itself and best practices suggested by the EEOC. Unfortunately, there is no bright line rule governing background checks and companies should be sure to consult with an attorney before implementing a background check policy that could include criminal history or credit checks.

Nick Johnson is an associate attorney with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at njohnson@BerenzweigLaw.com.