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The federal Age Discrimination in Employment Act (ADEA) turned 50 years old this month.  Congress enacted the ADEA, 50 years ago, to address the following stated problems:

(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

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In almost every workplace, information is communicated and stored electronically. Email, scanned documents, spreadsheets, databases, memos, letters, and more are all stored electronically. These troves of electronic information often contain the evidence that lawyers need to prove illegal activity. Even when a wrongdoer tries to cover their tracks, electronic storage of information can make it difficult to completely cover their tracks. One example of this occurred in a case in San Francisco that recently resulted in a judgment of over $10 million dollars for a whistleblower.

In that San Francisco case, the company claimed that it fired the whistleblower because of erratic work and loud outbursts. The whistleblower—who argued that the company fired him because he blew the whistle on illegal activity—said that his work was not erratic, he did not make loud outbursts, and the company never provided him with any documentation to support these claims. The company presented a performance review, dated a couple months before the whistleblower’s termination, which appeared to corroborate the company’s claim of erratic work and loud outbursts. But because the performance review was created electronically, “metadata” showed that the performance review was a fake.

Metadata is information about an electronic record such as who created it and when it was created. The whistleblower’s lawyer obtained the metadata associated with the performance review that supported the company’s claim of erratic work and loud outbursts. The metadata showed that the performance review was actually created after the whistleblower’s termination. This showed that the company did not take that performance review into account when it fired the whistleblower and that it may have created the performance review after the termination as a way to cover up its unlawful retaliatory motive for firing the whistleblower.

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After a three day jury trial, a Bangor jury found that Woodlands Senior Living of Brewer (“Woodlands”) violated the Americans with Disabilities Act, the Rehabilitation Act, the Family Medical Leave Act, and the Maine Family Medical Leave Requirements and awarded the plaintiff, Christy Dorr, of Milford, $15,000 for her lost wages. 

Ms. Dorr was employed by Woodlands Senior Living of Brewer for three years.  On June 26, 2014 she needed to leave a shift for reasons relating to her pregnancy and medical conditions.  The next day Woodlands terminated her employment.  The jury concluded that Woodlands terminated Ms. Dorr because of her protected medical conditions and that Woodlands had failed to provide her with protected leave under the Family Medical Leave Act. Ms. Dorr filed suit in the U.S. District Court for the District of Maine on March 10, 2015 and the case went through protracted litigation prior to the trial.

The Court will consider additional issues including an award of liquidated damages, changes to Woodlands’ policies and procedures, corrections of Ms. Dorr’s personnel file and an award of attorney’s fees and costs. Ms. Dorr is represented by Chad Hansen, a member of the Maine Employee Rights Group.

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Earlier this month a federal court in Connecticut determined that a jury could reasonably find that the Hartford School District unlawfully discriminated against a teacher because of her sexual orientation. The teacher (who is the plaintiff in the lawsuit) and her female spouse both worked for the same school. After the principal and an assistant principal learned that the plaintiff and her spouse were in a same-sex relationship, they allegedly engaged in a campaign of harassment against the plaintiff.

Plaintiff alleged, among other acts of harassment, that she was treated with hostility at meetings; she was assigned more than her fair share of children with behavioral problems; she received discipline for trumped up charges; she was berated for reporting that a student had physically assaulted her; she was denied transfers; and when she experienced a medical emergency at work, no one contacted her spouse to inform her. She eventually quit due to medical concerns related to the stress at work.

None of this harassment seems to have been directly linked to the plaintiff’s sexual orientation. For instance, there was no evidence that the principal used homophobic slurs or commented on plaintiff’s sexual orientation. However, the court determined that a jury could find that the harassment was linked to plaintiff’s sexual orientation because of evidence that the same principal treated other gay employees with hostility. Furthermore, the principal and assistant principal claimed that they did not know plaintiff’s sexual orientation and those claims lacked credibility because it was common knowledge in the school that plaintiff and her spouse were a couple. Thus, a jury could infer that the principal and assistant principal lied about not knowing plaintiff’s sexual orientation to cover up their discriminatory bias against plaintiff.

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We previously reported on the New York Department of Labor’s (NYDOL) delay in ruling on whether some former Uber drivers were eligible for unemployment benefits. To determine eligibility for unemployment benefits, NYDOL had to decide whether Uber drivers are employees or independent contractors. NYDOL finally reached a decision last week in favor of the Uber drivers.

Worker advocates in New York have taken this ruling from the NYDOL as a sign that they could be successful in arguing that Uber should treat its drivers in New York as employees. This would mean that they are entitled to a whole host of employment benefits such as workers compensation and overtime pay.

New York has now joined Oregon and California in determining that Uber drivers are employees for purposes of unemployment benefits determinations. Each state that makes a determination that Uber drivers are employees creates more precedent and more momentum for other states to do the same.

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Multiple studies have shown that homeless people face pervasive employment discrimination. In 2014, a survey of homeless people found that over 70% of them believed that businesses had discriminated against them based on their housing status. Homeless people face obstacles in getting employment because they are stereotyped as drug abusers and mentally disabled. (Of course, discrimination against the disabled is also illegal, but that is the subject for a different blog post.) Needless to say, this type of discrimination creates a vicious cycle of poverty for homeless people.

Maine does not have a law that prohibits employment discrimination against homeless people. Other New England states—Connecticut and Rhode Island—have passed laws, however, that prohibit employment discrimination against homeless people. Criminal statutes in Maine call for heightened punishment when a victim is targeted because s/he is homeless. A Maine law that prohibits employment discrimination against the homeless would go even further toward protecting one of the most, if not the most, vulnerable populations in our state.

Another option to help homeless people find employment is to enact laws that encourage employers to hire homeless people. Enhanced tax breaks for hiring the homeless or doing more to steer government contracts to employers that actively recruit homeless people for employment are two possibilities. There are already laws that provide these types of tax breaks to the poor but the tax breaks could be enhanced. All of these ideas merit consideration in Maine’s legislature and Congress.

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This week the U.S. Equal Employment Opportunity Commission (EEOC) convened a number of experts to discuss how employers have begun and will increasingly continue to use “Big Data” to make employment decisions. These uses of Big Data include using algorithms, “data scraping” of the internet, and other means to evaluate tens of thousands of data points. Employers use these techniques to determine who to hire, who to promote, how to determine whether an employee is performing well, and make other employment decisions.

“Big Data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations, and promotions,” said EEOC Chair Jenny R. Yang. “At the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

The experts saw the potential for the use of Big Data to make fairer employment decisions, reduce the role of implicit bias, and promote equality. At the same time, if not used properly, the use of Big Data could continue, and possibly worsen, inequities in employment decisions. As one expert said, “algorithms may be trained to predict outcomes which are themselves the result of previous discrimination. The high-performing group may be non-diverse and hence the characteristics of that group may more reflect their demographics than the skills or abilities needed to perform the job. The algorithm is matching people characteristics, rather than job requirements.”

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A panel of reviewers representing a variety of stakeholders, including advocates of employers’ and workers’ interests, recently issued a report that debunks the myth that the Maine Human Rights Commission (MHRC) is biased against employers.  This panel conducted its review in accordance with Governor LePages executive order that a panel study, among other things, factors causing and/or contributing to perceptions that the MHRC is prejudiced against employers and biased in favor of workers.  In conducting its work, the panel noted that there are also people who believe that the MHRC is prejudiced against workers, not employers, but the panel unanimously found no evidence of prejudice against employers or workers.

“We think the report very clearly and unambiguously finds that we are factually not biased and don’t act in a way that is biased toward anyone in our process, nevermind labor,” said MHRC Executive Director Amy Sneirson. “We also think that anyone looking at our annual reports could have found the same thing a year ago without needing this review panel.”

The panel made various recommendations to improve the MHRC in ways that would, hopefully, reduce the perceptions of bias.  These recommendations included more funding and staff at the MHRC.

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Yesterday, the U.S. First Circuit Court of Appeals in Boston breathed new life into a worker’s sexual harassment and retaliation case.  The worker, Xiaoyan Tang, represented herself before the trial court.  She claimed that the defendants, which included Citizens Bank and related entities, subjected her to unlawful sexual harassment and then fired her because she complained about it.  The trial court dismissed Ms. Tang’s claims.  After that, she retained counsel who successfully persuaded the First Circuit to reverse the trial court’s decision.

Ms. Tang claims that her supervisor at Citizens Bank, David Nackley, sexually harassed her.  The trial court held that no reasonable jury could determine that she experienced sexual harassment because, among other reasons, the alleged harassment was not sexual in nature.  The First Circuit found that the trial court committed one of the Cardinal sins in assessing the merits of a sexual harassment claim:  it failed to consider context.  For example, Mr. Nackley allegedly made an odd comment about Tang’s “ass” and his “ass” getting together.  The trial court found that this comment, while perhaps boorish and unprofessional, would have been just as offensive to a man as to a woman.  The First Circuit rejected this reasoning because the trial court ignored the context of the case which included Mr. Nackley making sexual innuendos and doing other things indicating that he was coming on to Ms. Tang sexually.

The trial court also failed to address Ms. Tang’s retaliation claim.  Ms. Tang claimed that Citizens Bank fired her in retaliation for a complaint that she made about Mr. Nackley’s discriminatory behavior.  Perhaps because she represented herself before the trial court, Ms. Tang’s court complaint did not contain a specifically enumerated retaliation claim and that may be why the trial court did not discern a retaliation claim from the court complaint.  However, the First Circuit held that Ms. Tang’s court complaint contained the allegation that Citizens Bank retaliated against her because of the discrimination complaint that she submitted to Citizens Bank.

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A new internet company named Blendoor has developed an app that will hide the names and photos of job seekers from employers in order to lessen the effect of unconscious bias on hiring decisions.  It is well established that everyone harbors biases against certain groups of people and those biases influence our decisions on an unconscious level.  Social scientists have studied and tested this phenomenon for decades.  If you don’t believe in the pervasiveness of unconscious bias, you should check out some of the tests that measures unconscious bias called implicit association tests (IAT).  IAT shows that even people who strongly believe that they have no discriminatory biases do harbor biases that affect their decision making on an unconscious level.

We have reported on a variety of studies which show statistically significant differences in the ways that certain types of job applicants face discrimination based on religion, age, and sexual orientation.  Other studies have shown similar results with respect to sex and race.  Blendoor’s founder, Stephanie Lampkin, believes that hiding information that indicates applicants’ genders and races can lessen the disparities in hiring rates for people of color and women.  Lampkin also believes that women and people of color will be more comfortable creating profiles on Blendoor than other platforms, such as Linkedin, where job seekers’ names are visible and employers often expect to see applicants’ photos.

Blendoor’s methods sound like they may help lessen disparities but they are unlikely to eliminate disparities.  Blendoor is designed for the tech industry and employers in that industry will likely interview applicants before hiring them.  If that interview process is not carefully crafted to mitigate the effects of unconscious bias, that bias will likely still impact a significant number of hiring decisions.  Furthermore, many employers rely on information about applicants’ criminal histories, credit histories, and employment histories to make hiring decisions.  African American and Hispanic applicants are statistically more likely to have problematic criminal histories, credit histories, and/or employment histories than white applicants.  For example, a disproportionate number of African American and Hispanic people get arrested for and convicted of crimes as compared to white people.  These disparities in criminal histories, credit histories, and employment histories are also due, in part, to unconscious bias.  Thus, when employers rely on these types of histories, the societal problem of unconscious bias can still create disparities in the hiring process unless an employer takes steps to correct for this unconscious bias.