In a high-profile and much anticipated ruling, the U.S. Supreme Court held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 applies to discrimination based on a worker’s sexual orientation or gender identity.
In a 6-3 decision authored by Justice Gorsuch, the Court pointed to the “plain meaning” of the language of Title VII and held that "Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII." Justices Kavanaugh, Alito, and Thomas dissented.
The Court reasoned that “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The decision covered three related cases. It resolves a long brewing split among the federal circuits and affirms a Seventh Circuit ruling allowing a lesbian professor’s wrongful termination lawsuit to move forward. The Justice Department argued against the workers in these cases, in a shift from the previous administration’s position supporting the rights of LGBTQ workers.
The ruling is of particular importance in those states where state civil rights laws have been held not to apply to discrimination based on sexual orientation or gender identity.
Inaccurate Background Reports Concerning Job Applicants May Give Rise to Employer Liability under FCRAJune 4, 2020 | Megan Stumph-Turner
The Missouri Court of Appeals recently reversed a trial court’s order for summary judgment in favor of an employer in a case brought under the Fair Credit Reporting Act (“FCRA”) for lack of standing, where the employer withheld an offer of employment based on inaccurate information obtained through a criminal background check.
In Courtright, et al. v. O’Reilly Automotive, three applicants filed suit asserting, among others, adverse-action claims against O’Reilly after their conditional job offers were revoked based upon information obtained from consumer reports and background checks. Plaintiffs alleged that O’Reilly committed procedural violations of FCRA by failing to disclose the contents of each applicants’ background reports and providing them the opportunity to cure any inaccuracies in the reports before taking adverse action against them – i.e., revoking each of their conditional offers of employment. The trial court entered summary judgment in favor of O’Reilly, and the three applicants appealed. The judgments against two of the three applicants were affirmed due to their failure to allege sufficient injuries to establish standing to bring a claim under FCRA, as the allegations in the complaint did not establish that the procedural violations of FCRA were the cause of their alleged harm.
However, the Court of Appeals for the Western District of Missouri found that the third applicant, Mr. Bradley, did state sufficient injuries caused by the procedural violation. Bradley demonstrated that he was not provided the background check results before his offer of employment was revoked. He instead had to request the background report from the third party vendor used by O’Reilly and to correct the issues directly with that vendor. He learned that the report erroneously stated that Mr. Bradley had been convicted and sentenced for stealing leased or rented property. After Mr. Bradley disputed the report in writing, the vendor corrected the report and provided it to O’Reilly. O’Reilly then hired Mr. Bradley, but not until after he had gone approximately two months without a paycheck.
The trial court had held that the alleged injury was caused by the inaccurate information provided by the third party vendor and entered judgment in favor of O’Reilly on that basis. But the Court of Appeals reversed the judgment, reasoning that if O’Reilly had furnished the report to Mr. Bradley before revoking the job offer, as required under FCRA, Mr. Bradley would have had the opportunity to resolve the error and avoid his period of unemployment.
Based upon this Court of Appeals holding, Missouri employers are strongly advised to promptly inform job applicants of any negative, material information found in background checks before taking any adverse action against the applicant, regardless of where and how the information was obtained.
Beginning January 1, 2021, employers with ten or more employees, located within the City of St. Louis will be prohibited from inquiring about an applicant’s criminal history on the employment application. Once the law takes effect, employers may not base a hiring or promotional decision on the criminal history, or sentence, of an applicant unless(1) the history is found to be reasonably related to, or bearing upon, the duties and responsibilities of the position; and (2) the employer can demonstrate that the decision is based on all available information.
Employers will be prohibited from inquiring about an applicant’s criminal history until such time as the applicant is otherwise determined to be qualified and has been interviewed for the position. The prohibition extends to employers seeking publicly available information about criminal history during the initial job application stage. Employers remain able to inquire about an applicant’s criminal history if all applicants in the final stage of selection will be similarly asked.
The prohibition further extends to employment advertisements containing exclusionary language based on criminal history. These prohibitions do not include employers hiring for positions where federal or state laws would otherwise exclude individuals with certain criminal histories. In such circumstances, employers can still publish these requirements and restrictions in advertisements and seek to determine an applicant’s compliance with these regulations during the initial application process.
The City of St. Louis joins 35 states, and over 150 cities and counties nationwide that have adopted “ban the box” legislation. This provides a marked change for local employers going forward once the ordinance takes effect. This will provide opportunity for employers in the City of St. Louis to evaluate their hiring procedures in order to determine compliance with the new requirements. Employers will also need to address policies concerning when criminal history inquiries are made of applicants, revise standard applicant paperwork required, and note that the requirements apply to decisions regarding promotions as well as new hires.
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The BSCR Employment & Labor Law Blog examines topics and developments of interest to employers, Human Resources professionals, and others with an interest in recent legal developments concerning the workplace. This blog will focus on Missouri, Illinois and Kansas law, and on major developments under federal law, and at the EEOC and NLRB. Learn more about the editor, David M. Eisenberg, and our Employment & Labor practice.
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