Category Archives: Discrimination

Sexual Harassment and Discrimination Lawsuit Filed in Philadelphia

New Jersey (NJ) and Pennsylvania (PA) wrongful termination and employment attorneys, Swartz Swidler, LLC, filed a lawsuit in federal court in Philadelphia, PA on behalf of an employee who contends that she was subjected to sexual harassment and wrongfully discharged for complaining about same.  Read More.

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Disability Discrimination Lawsuit Filed

On May 3, 2013, Swartz Swidler, LLC filed a federal discrimination lawsuit in Harrisburg, Pennsylvania, on behalf of a grieved employee who asserts he was wrongfully terminated in violation of the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).  Read More.

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The United States Equal Employment Opportunity Commission (“EEOC”) has Recently Published New Regulations Regarding Disparate-Impact Claims and the Reasonable Factors Other than Age Defense (“RFOA”) Under to the Age Discrimination in Employment Act (“ADEA”)

On April 30, 2012, the Equal Employment Opportunity Commission (“EEOC”) promulgated new Regulations for disparate-impact claims and the reasonable factors other than age defense (“RFOA”) under the Age Discrimination in Employment Act (“ADEA”).  The ADEA prohibits employment discrimination based on age, specifically for individuals forty (40) years of age or older.  The EEOC issued these new Regulations due to recent case law in an effort to reduce confusion for both employers and employees.

The new Regulations serve two purposes according to the EEOC’s website:

“It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and

It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.”

It is important to note that this change only impacts facially neutral policies and practices that could potentially harm older workers.   The test to determine if the practice or policy is based on RFOA is whether it was “reasonably designed and administered to achieve a legitimate business purpose.”  In making this determination, the following considerations are relevant:

1 – Stated business purpose;

2 – Accuracy of the definition of the factors, how the factors are applied, and if managers were given guidance or training;

3 – Limitations on supervisor discretion;

4 – Assessment of impact; and

5 – Severity of harm to older individuals and efforts to reduce the harm.

It is important for employers to consider these new Regulations when establishing policies and practices in order to minimize the exposure to disparate impact discrimination lawsuits under the ADEA.

If you believe you have been discriminated against under the ADEA or otherwise, unlawfully discharged, denied wages or overtime, or retaliated against, and you would like to an employment attorney, please contact Swartz Swidler, LLC for a free consultation at (856) 685-7420.  You may also contact us through our website.

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The United States Equal Employment Opportunity Commission (“EEOC”) Revises Enforcement Guidance on the Consideration of Criminal Records in Employment Decisions to Prevent Employment Discrimination

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) published its Enforcement Guidance regarding consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”) to prevent discriminationTitle VII prohibits employment discrimination based on race, color, religion, sex, or national origin.  The EEOC issued this Enforcement Guidance because the number of Americans involved in the criminal justice system has risen dramatically and an inordinately high percentage of African Americans and Hispanics are subject to imprisonment.  As criminal records become increasingly accessible to employers, they are having an increasing impact on employment decisions with potentially discriminatory results.

First the EEOC Enforcement Guidance demonstrates how using criminal records could result in disparate treatment discrimination under Title VII.  The Guidance presents an example of two individuals, one is White and one is African American, who are applying for the same job with similar credentials with similar criminal records.  If the employer hires the White individual, while rejecting that African American because of his criminal background, it has exposed itself to a potential Title VII claim for race discrimination.  Several forms of evidence of discrimination under Title VII are used in these cases: biased statements, inconsistencies in the hiring process, similarly situated comparators, employment testing, and statistical evidence.

The EEOC Enforcement Guidance also describes how using criminal records could result in disparate impact discrimination under Title VII even if there is a neutral policy or practice.  Because minority applicants are more likely to have criminal records, employers may not blindly and arbitrarily create and follow an no-criminal-record policy.  Instead, employers must show that using a criminal record as part of an employment decision is job related and consistent with business necessity.  Applying the holding in Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975), three factors were identified:

“[1] The nature and gravity of the offense or conduct;

[2] The time that has passed since the offense, conduct and/or completion of the sentence; and

[3] The nature of the job held or sought.”

It is critical for employers to consider these factors when making employment decisions based on the use of criminal records or they potentially expose themselves to disparate impact discrimination lawsuits.

Swartz Swidler, LLC a Pennsylvania (PA) and New Jersey (NJ) employment and discrimination law firm, handles employment discrimination claims.  If you believe you have been discriminated against, unlawfully discharged, denied wages or overtime, or retaliated against, and you believe you need to speak to an employment attorney, please contact us for a free consultation at (856) 685-7420. You may also contact us through our website.

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