There has been a recent flurry of concern, nationwide, about employers asking job applicants for their Facebook passwords so the employer can look around.
In response, Illinois has tried to pass legislation banning that activity. Democratic Rep. La Shawn Ford proposed a bill that would allow potential employees to file lawsuits if asked for access to sites like Facebook. Employers could still ask for usernames that would allow them to view public information on the sites. The bill is HB3782. However, the bill is on hold in the Illinois House. Ford says wants to protect employers as well as employees, and he will work on the language and bring the bill back for a House vote. Find the current status at: http://www.ilga.gov/
Likewise, some US Senators have said that employers who seek applicants’ passwords could be violating the law. Two U.S. senators are asking the EEOC and Department of Justice to determine whether employers who act in this manner are violating statutes concerning computer use, such as the Computer Fraud and Abuse Act and the Stored Communications Act.
Not surprisingly, Facebook has opposed the practice by employers. Facebook's chief privacy officer, Erin Egan, urged users not to share their passwords. Egan further warned HR departments that asking for the passwords could open companies up to unanticipated legal liability.
On March 20, 2012, the U.S. Supreme Court issued an opinion in Coleman v. Court of Appeals of Maryland, No. 10-1016.
By way of some background, the Family and Medical Leave Act of 1993 (FMLA) entitles an employee to take up to 12 work weeks of unpaid leave per year for (A) the care of a newborn son or daughter; (B) the adoption or foster-care placement of a child; (C) the care of a spouse, son, daughter, or parent with a serious medical condition; and (D) the employee's own serious health condition when the condition interferes with the employee's ability to perform at work. 29 U. S. C. §2612(a)(1). The FMLA also creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any Federal or State court.” §2617(a)(2). Here, subparagraphs (A), (B), and (C) are referred to as the family-care provisions, and subparagraph (D) as the self-care provision.
In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 730−732, the Supreme Court held that Congress could subject States to suit for violations of subparagraph (C) based on evidence of family-leave policies that discriminated on the basis of sex.
In this case, the employee filed suit, alleging that his employer, the Maryland Court of Appeals, an instrumentality of the State, violated the subparagraph (D) of the FMLA, by denying him self-care leave.
The District Court dismissed the suit on sovereign immunity grounds. The Fourth Circuit affirmed, holding that unlike the family-care provision in Hibbs, the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.
Justice Kennedy delivered the opinion for a divided court (dissent by Justice Ginsberg and Breyer, joined in part by Justices Kagan and Sotomayor). The Supreme Court affirmed the dismissal, with four justices holding that suits against states under the self-care provision are barred by sovereign immunity, where the sex-based discrimination that supports allowing section 2612(a)(1)(C) suits against states—for denying leave for the care of a spouse, son, daughter, or parent with a serious medical condition—is absent with respect to the self-care provision.
The opinion can be found at: http://www.supremecourt.gov/opinions/11pdf/10-1016.pdf
Yesterday, the 7th Circuit issued an opinion in King v. Acosta Sales and Marketing, Inc., No. 11-3617 (March 13, 2012), reversing, in part, the district court and remanding the case.
In the underlying action, former employee King charged her former employer Acosta with two kinds of sex discrimination: that Acosta maintained a hostile work environment in which conditions for women were inferior to those for men, and that Acosta paid women less than men for the same work.
The Seventh Circuit opined out that an employee's only burden under the Equal Pay Act is to show a difference in pay for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions" (§206(d)(1)). However, the district court erred by finding that the employer need only articulate that education and prior experience accounted for any pay differences between plaintiff and her male comparatives. Instead, the employer must meet the burdens of "both production and persuasion" that the difference is the result of a "factor other than sex." Judge Easterbrook pointed out that "education and experience . . . [may] explain some or even all of the difference in the starting salaries . . . . There is no reason why they should explain increases in pay while a person is employed by Acosta. Changes in salary at most firms depend on how well a person performs at work."
Recently, the Seventh Circuit reversed and remanded a case in favor of an employee-plantiff. Cook v. IPC International Corp., No. 11-2502 (March 8, 2012).
The Seventh Circuit held that the employee was entitled to new trial in her Title VII lawsuit. The suit alleged that her employer had discriminated against her because of her sex and terminated her in retaliation for making complaints of discrimination.
Defendant employed plaintiff as a security supervisor. After the employee complained that her supervisor, made sexually offensive remarks and favored males, her supervisor gave her negative evaluations and accused her of misconduct, including theft. Employer transferred her to a non-supervisory position at a distant location. Supervisor told her to turn in keys and empty her locker. Believing that she had been fired, she did not return.
In the underlying action, the jury rejected the employer's claim that the employee had not been terminated. However, the District Court the confused the jury by submitting improper instructions that required jury to find that plaintiff's supervisor was sole decision-maker in order to impose liability on defendant.The Seventh Circuit reversed, calling the "cat's paw" theory of liability "a dreadful muddle." The District Court, by injecting “sole decision-maker” into deliberations created confusion, as the Supervisor was not a cat’s paw; "he was the monkey."
While Illinois law already forbids an employer from basing hiring, promotion, and other employment discussions on an employee or job applicant's credit history, Chicago is considering a new law that would go further.Alderman Pawar’s bill would mirror the enacted Illinois law to restrict credit checks in employment, but goes further by allowing Chicago residents to file a formal complaint with the city Human Rights Commission if a violation of the law occurs (in addition to the private right of action in the state bill.)The Chicago bill also bans discrimination against the long-term unemployed. If passed, it would give Chicago job applicants the right to file a complaint with the Chicago Human Rights Commission as well. This law would put an end to the vicious cycle where the longer an employee is out of work, the harder it is to to find new work.
The proposed law is set for a full counsel vote later this month, on March 14, 2012. See the Committee on Human Relations February 16, 2012 summary report here.
The Seventh Circuit recently issued an opinion in McReynolds v. Merrill Lynch (Feb. 24, 2012). The opinion, written by Judge Posner, reversed an order denying class certification of Title VII race discrimination claims under Rules 23(b)(2) and (c)(4). The Court applied the standards from the Wal-Mart v. Dukes Supreme Court decision of June 2011 where the Supreme Court reversed certification of a class of over one million employees pursuing intentional discrimination claims), but found factual and legal differences warranting certification.
In both Dukes and McReynolds, the plaintiffs alleged racial discrimination and sought injunctive relief. However, McReynolds was distinct because in Wal-Mart, “there was no company-wide policy to challenge . . . there was no common issue to justify class treatment.” Here, two company-wide policies were challenged: “the company’s ‘teaming’ policy and its ‘account distribution’ policy.” Additionally, unlike in Wal-Mart, here plaintiffs sought certification only of disparate impact claims (which do not require a showing of intent nor permit recovery of compensatory or punitive damages). The Court held that liability issues presented by the disparate impact claims in McReynolds would be more efficiently determined in a single, class proceeding even though subsequent proceedings to determine damages may be complicated and may require individual determinations. The full opinion can be found at http://www.ca7.uscourts.gov/tmp/G20U9NSI.pdf
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