Tucker Rocky
Operations Leadership
Labor & Employment
Overview
John Koepke
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
214.953.6005
jkoepke@jw.com
Applicant Evaluation
• Use of external blogs/social networks to “mine”
applicants
– Industry-specific blogs, discussion forums,
newsgroups, listservs
• Use of external blogs/social networking sites to
vet applications
– Can give clues to an applicant’s analytical skills,
communication skills, tact, and general maturity
– Can provide insight as to how others feel about the
applicant
– Can help potentially avoid negligent hiring claim
“Facebook IQ”
Some recruiters look at Facebook pages to get
an estimate of the individual’s IQ, personality
traits and whether they would be a “good fit”
– Are they outgoing, as might be needed for a sales
job?
– Do they use creative phrases and correct grammar?
– What books or activities do they reference (if any)?
– Number of “friends” – social skills
– Look at comments by “friends” for more insight
Pre-Employment – Risks
• Sites may allow potential employers to discover
“protected” information (e.g., age, marital status,
familial status, sexual orientation, religious affiliation,
political views, etc.)
– If you choose to examine external social networks, have nondecision maker conduct search and filter out information
related to protected characteristics before passing along to hiring
manager
– Have searches run by employer and not third party to avoid
potential issues under the Fair Credit Reporting Act or statespecific statutes
– Carefully consider criteria in determining how and when to use
online social networking sites in evaluating applicants
What is Unlawful Harassment?
• The victim as well as the harasser may be a man or a woman.
The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, a supervisor or
co-worker in another area, or a non-employee.
• The victim does not have to be the person harassed, but
anyone affected by the offensive conduct.
• The conduct at issue is often “sexual” in nature, but it need
not be “sexual” in order to be unlawful, so long as the conduct
is, for example, directed at a complainant because of his or
her sex.
Employer Liability for Harassment
Courts recognize two sorts of harassment claims:
• The first sort occurs when an employer demands sexual favors
from an employee in return for a job benefit or keeping one’s job,
the employee refuses, and the job benefit is withheld or the
employee is discharged. In such cases, sex-based
“discrimination with respect to terms or conditions of employment
[is] explicit.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752
(1998). Such “[c]ases based on threats which are carried out are
referred to as quid pro quo cases.” Id. at 751.
• Quid pro quo cases are distinct from those that merely involve
“bothersome attentions or sexual remarks.” Id. Situations
involving that type of conduct are also actionable under Title VII,
but such claims must involve sex-based demeaning behavior that
is “sufficiently severe or pervasive to create a hostile work
environment.” Id. Those cases are thus referred to as “hostile
work environment cases.”
Employer Liability for Harassment
(con’t)
1. Employer Liability in “Quid Pro Quo”
Cases.
In harassment cases that involve tangible
employment actions resulting from a refusal to
submit to a supervisor’s sexual demands, the
employer is always vicariously liable for the
employment action. Id. at 753 & 761-62 (“[A]
tangible employment action taken by the
supervisor becomes for Title VII purposes the
act of the employer.”).
Employer Liability for Harassment (con’t)
2.
Employer Liability in Hostile Work Environment
Cases Caused by Supervisor Conduct.
If the plaintiff proves the initial elements of a harassment claim,
the employer is then vicariously liable for the supervisor’s conduct
unless the employer can prove both prongs of an affirmative
defense set out in Ellerth and Faragher v. City of Boca Raton, 524
U.S. 775 (1998).
Under that defense, an employer may escape liability for its
supervisor’s unlawful conduct by showing “(1) the employer
exercised reasonable care to prevent and correct promptly any
such sexual harassment, and (2) the employee unreasonably
failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm
otherwise.” Id. at 807.
Employer Liability for Harassment
(con’t)
3.
Employer Liability in Hostile Work Environment
Cases Caused by Co-Worker Conduct.
In harassment cases that do not involve supervisory
conduct, the plaintiff must first show that she suffered
unwelcome, sex-based harassment that was severe or
pervasive enough to alter the terms and conditions of
her employment. To establish employer liability, the
plaintiff must further show that “the employer knew or
should have known of the harassment and failed to
take prompt remedial action.” Woods v. Delta
Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir.
2001).
PROPOSED RULE EXAMPLES OF
IMPAIRMENTS THAT “CONSISTENTLY MEET
THE DEFINITION OF DISABILITY”
• Deafness
• Blindness
• Partially or completely missing limbs
• Cancer
• Autism
• HIV/AIDS
• Diabetes
• Mental diseases
IMPAIRMENT
• Clarifies that episodic impairments and
those in remission may be disabilities
• Examples: chronic illness, cancer
PROPOSED RULE EXAMPLES OF
EPISODIC IMPAIRMENTS
• Epilepsy
• Multiple sclerosis
• Hypertension
• Asthma
• Diabetes
• Major depression
• Bipolar disorder
REASONABLE
ACCOMMODATIONS
Possible accommodations include:
• Modification of equipment
• Purchase of devices or equipment
• Modified work schedule
• Reassignment to vacant position
EMPLOYERS NOT REQUIRED TO MODIFY
ESSENTIAL FUNCTIONS OF THE JOB OR
IMPLEMENT ACCOMMODATIONS WHICH WOULD
IMPOSE AN UNDUE HARDSHIP
Typically not necessary:
• Hiring another employee to perform job
• “Bumping” other employees
• Creating new position
• Allowing indefinite absence
“REGARDED AS” DISABLED
• Before employees only covered if employer
regarded employee as having an impairment
and regarded that impairment to substantially
limit a major life activity
• Now, employee only has to prove employer
regarded them as having an impairment
• Proposed rule provides that an employer that
asks if an employee needs a reasonable
accommodation will not be deemed to be
regarding that employee as disabled
PROCESS
• Use previously completed form I-9 plus picture ID.
(expired passport no longer useable for E-Verify)
• New I-9 form must be completed when
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Expired document used
Immigration status changed
Did not contain photo ID
Name change
No social security number provided
Alien number changed
PREGNANCY DISCRIMINATION ACT
• Amended Title VII of the Civil Rights Act of 1964
• Pregnancy, childbirth and related medical conditions
• Must be treated the same for all employment purposes
as other persons who are similar in their ability or
inability to work
• Pregnant employees must be permitted to work as long
as they are able to perform their jobs
• Cannot single out pregnancy-related conditions for
special procedures to determine an employee’s ability to
work.
WHAT IS THIS PRIVILEGE?
• Under Texas law, a qualified privilege
extends to communications about an
employee if the person who is told has a
corresponding interest or duty in the
subject matter of the communication.
• This is a complete defense to a
defamation claim unless the statement is
made with actual malice or the privilege is
abused.