A Costco employee had an eyebrow piercing that violated the company’s dress code. Management told her to cover it with a Band-Aid while she was working. This she refused to do. She explained that, as a member of the Church of Body Modification (“CBM”), she had to be a confident role model, proudly displaying her eyebrow jewelry at all times. Members of the CBM believe that–through rituals like piercing, scarring, tattooing and suspension—they strengthen the connection between their bodies, minds, and souls.

Costco fired her, and she sued. The First Circuit held that Costco would suffer undue hardship if it allowed the employee to display her face jewelry. “Courts have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges.” By allowing an exemption from the dress code, “Costco forfeits its ability to mandate compliance and thus loses control over its public image.”

This was a closer case than one might think. Initially, the Equal Employment Opportunity Commission determined that Costco had violated the employee’s civil rights. And this case may have turned on the fact that Costco was more reasonable in offering accommodations than the plaintiff was in refusing them.

It was a different matter when a high school freshman insisted that her membership in the CBM trumped the school’s dress code. She insisted on keeping her nose stud and got suspended. The federal district court for North Carolina granted an injunction against the enforcement of the dress code. If the student were not permitted to practice her religious beliefs, she would suffer greater harm than the school would, if it relaxed its dress code. The school ultimately abandoned its appeal and paid the plaintiff’s legal fees.

Neither courts nor employers are in a good position to determine whether a religious belief is sincere or not. When an employee complains that a neutral rule is infringing on her religious beliefs, wise employers will make a serious effort to reconcile those beliefs with the legitimate requirements of the business.

In Massachusetts, an employer who fails to pay wages within six days after the end of the pay period is liable for treble damages and attorneys’ fees. But what about payroll deductions that are supposed to go into a retirement account?  Does an employer get penalized for failing to invest them as directed?

In our case, yes.

A large Boston real estate company deducted wages from our client’s pay, stating that they were being invested in the employee’s retirement account.  The employee became curious when he wasn’t getting any account statements.  He repeatedly asked the employer about it but never got an answer.  Two years later, when he quit, the employer admitted it had never deposited the money.  Our client sued under the state’s Wage Act.

The employer took the position that payroll deductions weren’t wages, citing a case in which the City of Boston took longer than six days to invest patrolmen’s wages in their accounts.  But this was a special kind of retirement account in which municipalities own the funds until the employee is entitled to them.  In the usual case, the funds belong to the employee.

Besides, the Court said, the retirement account was never created.  “It defies logic to rely upon what was supposed to occur, but did not, as a basis for exoneration from the strict requirements of the Wage Act.”  Pacheco v. H.N. Gorin, et al., MICV2009-01946.

Photo: Orin Zebest

The claim was denied.  He appealed—lost.   A further appeal—lost.  A new worker’s compensation case—dismissed.  Then a civil case—which was completely groundless.  Worker’s compensation is an absolute bar to personal injury lawsuits like this one, the Court observed.

In dismissing the civil case, a federal judge ordered the lawyer to pay Verizon $35,000 in attorneys’ fees, because he had “blindly forged ahead for a third pass.”  While the lawyer said he was just being a zealous advocate, the court disagreed. “[T]here is a point beyond which zeal becomes vexation, the ‘novel’ approach to a legal issue converts to frivolity and steadfast adherence to a position transforms to obdurateness. Here,  [the plaintiff’s attorney’s] judgment was clouded by [his] excessive zeal to the point that [his] performance became unlawyerly.”  McCarthy v. Verizon New England, Inc., Mass. (Stearns, J.) (USDC) (Civil Action No. 09-10991-RGS) (March 25, 2011)., quoting, Cruz v. Savage, 896 F.2d 626, 634 (1st Cir. 1990).

According to the Mass. Transgender Political Coalition, the bill is necessary because transgender people in Massachusetts frequently encounter unequal treatment in employment, schools, housing, public accommodations, and access to healthcare.  They also report high incidences of violence and harassment.  The coalition cites a survey in which transgender respondents say they: experience unemployment at twice the rate of the population as a whole; are almost universally harassed on the job; are likely to be fired; and have disproportionately high rates of poverty.

The bill is at the Joint Committee on the Judiciary.   About a hundred legislators have signed on, and the governor has already signed an executive order preventing state government and contractors from discriminating.   If Massachusetts outlaws transgender discrimination, it will be the fourteenth state to do so.

In answer to the inevitable question about bathrooms, the bill entitles people to “the full enjoyment of such facilities … consistent with their gender identity or expression.”  That is, men who appear to be women will use the ladies’ room.

When employees of the ABC Disposal Service (yes, that’s the real name) were at fault in an accident, the company gave them a choice.  They could be disciplined, or they could pay for the damage.  A safety officer conducted a thorough review of the accident record and presented findings to the safety manager.  If the safety manager decided that the damage resulted from a preventable accident, he would present the two options to the employee.  If the employee chose to pay, instead of being disciplined, ABC would set up a repayment schedule with modest weekly deductions.  ABC never reduced the employee’s wages below the minimum wage.

Under Massachusetts law, employers are permitted to deduct for “a clear and established debt.”  They can’t enter into a special contract to withhold wages.  That’s exactly what ABC was doing here.  Besides, the process was one-sided.  ABC had the discretion to decide whether the employee was liable. 

As the Court said, “An arrangement whereby ABC serves as the sole arbiter, making a unilateral assessment of liability as well as amount of damages with no role for an independent decision maker, much less a court, and, apparently, not even an opportunity for an employee to challenge the result within the company, does not amount to ‘a clear and established debt owed to the employer by the employee.’”

The employer can dock wages only in a few situations.  These include: (1) an undisputed loan or wage advance (or a mistaken overpayment ); (2) employee theft or misappropriation established through an independent proceeding with due process protections; and (3) an employer’s judgment against the employee for the value of the employer’s property.  

While there may be other exceptions–for example, a deduction permitted under a union contract–the employer withholds wages at his peril.

Maria Tayag accompanied her husband on a trip to a healing ministry in the Philipines, where they went to mass, prayed, and visited with other pilgrims.  They also visited friends and family members.  Her husband did not obtain any medical treatment or see a doctor during the trip.  When Tayag was fired, she sued under the Family Medical Leave Act. 

While a person is entitled to take time off to care for a spouse with a serious health condition, the care has to be medically necessary.  Faith healing ordinarily doesn’t qualify.  There is an exception for Christian Scientists, but Tayag’s husband was not a Christian Scientist.   

The First Circuit did not want to extend the faith-healing exception to other religions.  There was a good reason for the distinction.  Christian Scientists rely solely on a religious method of healing, so there is no duplication for employers providing FMLA leave.  On the other hand, “Tayag’s husband gets ordinary medical care, and she has taken full advantage of the FMLA to provide assistance to him in connection with that care.”

When a woman charged that she wasn’t getting the same raises as her male counterparts, she was protected against retaliation, so the employer fired her fiancée instead.  He sued under the theory that his firing—three weeks after his girlfriend had filed a charge of discrimination—was retaliatory.

The Supreme Court agreed.  In the case of Thompson v. North American Stainless, LP, the court held that a reasonable worker “might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  The Court found that Title VII protects not only the complainant from retaliation, but also those within the “zone of interests” which the law is designed to protect.

In a mirror-image case, a woman filed a charge of discrimination against Wal-Mart.  The company declined to hire her son or daughter, even though they had interviewed well, but hired less qualified applicants.  The court did not allow the son and daughter to file an associational claim like the one in Thompson, but did allow the mother to claim retaliation, even though she had not personally suffered an adverse action.  E.E.O.C. v. Wal-Mart Stores, Inc ., 576 F. Supp.2d 1240 (D.N.M. 2008).

Meanwhile, the Massachusetts Commission Against Discrimination found that a white boss created a hostile work environment for his white employee by insulting his Jamaican fiancée.   The boss felt that anything goes in the rough environment where he worked.  “This is a construction site, not Superior Court,” he told Massachusetts Lawyers Weekly,  “I deny making a hostile work environment.  As a matter of fact, everybody loved me at the place.”   But calling the employee a  “porch monkey lover,” among other things, went too far.  The stream of abuse was sufficiently severe and pervasive to alter the conditions of employment and create an abusive environment.

Even before the Supreme Court spoke, theory of associational discrimination was widely accepted.  In a 1996 case, the MCAD sanctioned a landlord when he refused to rent to a white woman, whose son was black.   Similarly, a white basketball coach stated a claim when he alleged that he was fired because his wife is African-American. “[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race,” the Second Circuit said.

Where do you draw the line?  When is the association too remote?  The answer is going to depend on the facts of each case, although Thompson does provide some guidance: “[F]iring a close family member will almost always meet the [retaliation standard] and inflicting a milder reprisal on a mere acquaintance will almost never do so.”

According to the Equal Employment Opportunity Commission, being overweight isn’t normally an impairment that would bring a person under the commission’s protection.  (Someone who is twice the normal weight may have physical issues that would qualify as impairments.)  Now, however, plaintiffs are successfully claiming that, although their weight was not an impairment, their employer thought it was. 

The EEOC recently filed suit on behalf of a woman who was fired due to her weight.   She had counseled children of mothers undergoing addiction treatment with the New Orleans office of Resources for Human Development.  The suit claims the employee was able to perform all the essential functions of her job, but her employer perceived her as being limited in major life activities, such as walking, and thus violated the Americans with Disabilities Act.  An EEOC official said the suit is “a classic case of disability bias, based on myths and stereotypes.”

Cases like this open the door to claims of discrimination based on appearance, rather than on true disability. For example, an obese man named Joseph Connor wanted to work for McDonald’s. He was promised a position but was told he would have to wait to start the job until a uniform could be specially ordered for him.  Months later, he still had not been given a start date, even though the restaurant had hired several other new employees in the interim. Connor sued under the ADA, alleging McDonald’s regarded him as disabled due to his weight. The case survived a motion to dismiss and eventually settled.

There are a few places—Michigan, New Jersey, and Washington, D.C., and a couple of municipalities—that bar discrimination based on weight.  Jennifer Portnick, an aerobics instructor in San Francisco, was initially refused a Jazzercise franchise because the company said she didn’t present the sort of fit image the company wanted to portray. Because San Francisco includes obesity in its human rights ordinance, Jazzercise settled Portnick’s claim and agreed to allow overweight instructors who otherwise meet fitness tests to buy Jazzercise franchises.  And in Michigan, petite Cassandra Smith is suing Hooters because the restaurant chain told her to slim down from her current 132 pounds to look better in her extra-small uniform.

There are some jobs in which a person’s weight is an important, neutral qualification.  For example, a city was able to terminate a firefighter who failed to meet generally applicable weight criteria.  But for most positions, employers should consider the person’s qualifications and abilities, and not his appearance.

An employee got depressed and called in sick.  She stayed out of work for eighteen days.  She didn’t fill out an FMLA request, even though the employer asked her to.  She actually sent in a doctor’s note saying she was cleared to return to work. But she never came back.

Naturally, she got fired.  Four days later, a nurse practitioner sent a note saying the employee needed a month off.  By this time, it was too late.  Or that’s how the employer saw it.

The 6th Circuit disagreed.  An employee has 15 days to provide medical certification in support of a leave request under the FMLA.  The court found no evidence that the company formally requested the medical certification in accordance with the FMLA regulations.  The company’s FMLA leave form failed to include information, required by the FMLA regulations, about FMLA certification or the consequences of not returning the certification in a timely manner.  A reasonable jury might find that the 15-day certification period was never triggered.

In other words, a jury could find that the nurse practitioner’s note—received after the employee had been terminated—was a timely medical certification showing that the employee was entitled to FMLA leave.

The lesson for employers?  Make sure your FMLA request form provides the required warnings and send it to the employee—along with your request for certification—as soon as you can.  Then wait the full fifteen days after receipt before making a decision about termination.

 A personnel record is anything that can be used “relative to the employee’s qualification for employment, promotion, transfer, or disciplinary action.”  What has to be disclosed is information that can “negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or the possibility that an employee will be subject to disciplinary action.”

 This is pretty broad, so to be safe, you should show the employee any evaluation or other written record that could possibly meet the definition and have them sign to acknowledge that they received it.

 Courts balance the employee’s reasonable expectation of privacy against the employer’s legitimate business interest.  In a union shop, it’s even more restrictive.  Surveillance has to be bargained. 

When Anheuser-Busch caught employees on camera getting high, it fired them.  The union challenged the action.  The D.C. Circuit said that the secret taping had violated the National Labor Relations Act.  Despite the employees’ illegal conduct, they could be entitled to reinstatement with back pay.

More recently, a center for abused children discovered that someone had been looking at pornography on one of the work computers after business hours.  The computer was in an office where two women worked.   The center installed a secret camera, which was only turned on after both women had gone home.  Eventually, the women found the camera and sued the employer—even though they had never actually been taped. 

The California Supreme Court found for the employer.  The center’s interest in finding out who was viewing pornography in a children’s home was more significant than the employees’ expectation of privacy.  The surveillance was narrowly tailored in terms of scope, place and time, and specifically directed at catching the creep.

There’s nothing wrong with monitoring Internet use at work—about two thirds of employers in one survey said they do it.  Particularly in cash businesses like bars, video surveillance is common. 

We recommend telling the employees in writing that you monitor Internet use and identifying the general areas of the workplace where video surveillance takes place.  That way, it is harder for them to claim that they have a reasonable expectation of privacy.

The Eighth Circuit dismissed her case, noting that a police dispatcher has to act quickly and calmly in emergencies and be able to get accurate and complete information from callers who may be frantic and incoherent.  Employers are permitted “to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims,” said the court, and fitness-for-duty examinations are considered a reasonable means of making this determination.

The dispatcher had admitted that she was suffering from a serious health condition that rendered her unable to perform the essential functions of her job.  “The FMLA does not provide … a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.”

This doesn’t mean that employers can demand a  fitness-for-duty examination every time someone asks for time off.  There has to be a good reason to question whether the employee can perform the essential functions of her job.

Work clothes?

Employees are not ordinarily entitled to be paid for changing into work clothes.  Under Fair Labor Standards Act § 203(o), time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time.  Until last month, that exception also applied to protective gear.  When workers put on their mesh aprons, plastic belly guards, mesh sleeves, plastic arm guards, wrist wraps, mesh gloves, rubber gloves, polar sleeves, rubber boots, shin guards and weight belts before a day processing meat, they were just getting dressed for work.

That has changed.

The exception for changing “clothes” no longer includes “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job,”  according to the DOL.

Even though putting on a uniform is still not paid time, that activity may be enough to signal the start of the continuous working day.  Anything the employee does after he changes into his work clothes—travel time or waiting, for example—may now be compensable under the FLSA.

You may have a “use it or lose it” policy.  Your manual probably encourages employees to take advantage of their well-earned time off because it expires at the end of the year.  Until last summer, many employers believed they didn’t have to pay departing employees for  such earned but unused vacation time.

Last June, the Supreme Judicial Court clarified the situation. Even if vacation time cannot accumulate from year-to-year, and the employer doesn’t consider the vacation time “earned,” vacation time that accrues during the year is “wages,” and must be paid in full at termination.

Employees may not be forced to use up paid vacation or sick time before taking unpaid maternity leave under the Massachusetts Maternity Leave Act.

The Massachusetts Maternity Leave Act (“MMLA”) guarantees full-time female employees eight weeks of maternity leave, when giving birth or adopting a child.   This maternity leave is unpaid. An employee may choose to use vacation or sick time concurrently with her MMLA leave, but she may not be required to exhaust her paid sick and vacation time in order to use her MMLA leave.

–Nora Adukonis

]]> http://www.rosenlawoffice.com/vacation-days-are-wages/feed/ 0 http://www.rosenlawoffice.com/no-such-thing-as-a-free-intern/ http://www.rosenlawoffice.com/no-such-thing-as-a-free-intern/#comments Sat, 08 May 2010 18:36:20 +0000 joelrosen http://rosenlawoffice.com/?p=290 On-the-job experience is a valuable thing.  As a graduate of Northeastern University School of Law – a school known for its cooperative education program—no one knows this better than me.   Unpaid internships allow students to get their feet wet.  With the economic downturn, students recognize the value of adding experience –even unpaid—to their resumes. However, when an employer uses unpaid interns to supplement its regular workforce, that’s probably a wage-and-hour violation.

Many employers scrupulously comply with Federal and State overtime, minimum wage, and payment of wages laws –not to mention income tax withholding and worker’s compensation laws—but think nothing of allowing a college student to work alongside regular employees, for no wages at all. The college student might be quite content with receiving only experience in return.   However, Federal Law doesn’t allow the parties to benefit from this voluntary relationship—at least in a for-profit context.

“Individuals who are ‘suffered or permitted’ to work must be compensated under the law for the services they perform for an employer.”  Interns –even those receiving academic credit—must be treated as employees unless all of the following criteria are met:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Number four is the kicker. An employer may not derive any immediate advantage from the activities of the intern. That means no filing, no answering phones, no sorting mail. Nothing that actually helps the employer, in other words:

“If the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the  fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.”

If you’re still wondering whether that bright young person in your office is an intern or an employee, or want advice on having interns while still complying with the law, give us a call.

–Nora Adukonis

A New Mexico man has sued his neighbor for aggravating his “electromagnetic sensitivities.”   Arthur Firstenberg is seeking $530,000 in damages from Raphaela Monribot, claiming that her laptop computer, wireless router, i Phone, and dimmer switches cause him symptoms including nausea, vertigo and heart arrhythmia.   We will be interested in what a jury thinks of these claims.

Meanwhile, if an employee complains of electromagnetic hypersensitivity, the employer’s analysis is no different from any other allegation of a disability.  The first question is whether a disability exists.  Does the condition interfere with the employee’s major life activities?  This is a question to be addressed by medical professionals—the client’s doctor and your own advisors.  Our nonscientific web search raises questions of whether this sensitivity is real or imagined.

The employee may really be suffering from headache, fatigue, tinnitus, dizziness, memory deficits, irregular heart beat, whole-body skin symptoms, or other symptoms—but it may not be your router that is causing them.  “Sufferers and their support groups are convinced of a causal relationship with electromagnetic fields, but presently the scientific literature does not support such a link….  Double-blind experiments have been published, each of which has suggested that people who report electromagnetic hypersensitivity are unable to detect the presence of electromagnetic fields and are as likely to report ill health following a sham exposure, as they are following exposure to genuine electromagnetic fields.”

Even when an employer is skeptical about a claim of disability, we usually advise taking it seriously and entering into a dialog about what accommodation is reasonable.  As most of the microwave radiation probably originates outside the office, it may impossible for the individual employer to stop it.  The expense of shielding the office may be prohibitive.   If it is practical to allow the employee to work from home, that is one possibility that can be considered.  There are devices on the Internet that claim to block microwaves, although we are far from persuaded of their efficacy.

It’s possible there is nothing you can do.  If the employee has a reasonable suggestion, you might want to hold your skepticism in check and wait for other parties to fight over whether this is a real disability or not.

Susan McBride, a Detroit city planner, sued the city for discrimination after a coworker’s perfume caused health problems.  (McBride v. City of Detroit, No. 07-12794.)  The office-mate used strong perfume and plugged in a room deodorizer too.  The smells overcame McBride to the point where she missed work and had to undergo medical treatment.

McBride asked the city to adopt a “no-scent” policy.  The city declined and later argued that such a policy was not a reasonable accommodation, because it would present an undue hardship.  The federal court disagreed.  The policy she requested was based on one already in use at the Michigan Dept. of Information Technology.  It did not prohibit all scents but stated that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”   McBride settled for $100,000.

Almost one in five people has a respiratory problem of some kind and can be affected by the chemicals used in creating fragrances.  Common symptoms are headaches, breathing problems, and nausea.

Many employers—particularly medical offices—are adding no-scent policies to their employment manuals.   Some of these are so strict that they prohibit flowers and magazines with perfumed inserts.  Others, like the one McBride advocated, are more flexible.

You may not need a scent-free policy at all.  You need to listen to your employees and take their requests for accommodation seriously.  In a rock ballad it may be all right for the smell of cheap perfume to go on and on and on—but not at the office.

]]> http://www.rosenlawoffice.com/a-fragrance-free-workplace/feed/ 3 http://www.rosenlawoffice.com/new-standards-for-age-discrimination-claims/ http://www.rosenlawoffice.com/new-standards-for-age-discrimination-claims/#comments Tue, 23 Feb 2010 20:42:38 +0000 joelrosen http://rosenlawoffice.com/?p=211 The Equal Employment Opportunity Commission plans to clarify the standards for defending against age discrimination claims.   The new standards are being proposed to respond to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005).

Before Smith, a plaintiff had to show that the employer intentionally treated him differently from other workers due to his age.   Smith made it clear that an employer’s action could be discriminatory even if it merely had a disparate impact on older workers.

If Smith made the employee’s case easier to prove, it also lightened the employer’s burden.   The Court said employers no longer need to show that their action was justified by a business necessity.  They simply need to demonstrate that the action was reasonable and was based on something other than age.

The EEOC’s regulations haven’t kept up with that change.  They still say an employment practice that has an adverse impact on older workers “can only be justified as a business necessity.”  The proposed rule gets rid of that requirement.  It says,  “whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.”

The proposed rule sets up standards for determining whether the practice is reasonable.  Those factors include: whether the employer took steps to assess the adverse impact of its employment practices on older workers; the extent to which older workers may be harmed by the policy; and whether “other options” were available to the employer.

When an employer has to show that “other options” weren’t available, it sounds suspiciously like the old “business necessity” standard.  But the EEOC  indicates the employer isn’t required to use the other options.   Their availability is one factor to consider in deciding whether the action was reasonable.

1. Increase the number of Americans protected by the ADA.
2. Shift the focus from “Who is Disabled?” to “Was there reasonable accommodation?”

So, who counts as a “person with a disability” now? It starts with the same definition you may be familiar with: A person who has, or is regarded as having, an impairment that substantially limits one or more major life activities. But, that definition has become broader:

1. The words, “substantially limits one or more major life activities” can refer to the effects of almost any medical condition on the body. Bodily functions, for example, are major life activities in the act.  An individual may appear to be healthy and able-bodied, but may still have impaired bodily or organ function.
2. “Mitigating measures,” except for ordinary eyeglasses and contact lenses, will NOT be considered in determining whether someone is disabled.  If someone has a condition which is controlled by medication, use of devices, or other therapies –even if they are symptom-free— they may still have a disability.
3. Disabilities can come and go. The act says that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” So, people who have chronic medical conditions that only occasionally ‘flare up,’ may have a disability.

What does this mean to an employer?

Shift your focus to accommodation.  If someone claims to be disabled, it is dangerous for you to decide whether or not that’s true.  There is no list of medical conditions that are “disabilities.” A condition which may be disabling in one individual may not be in another. “Disabilities” now include conditions that are in remission, mitigated by medication or therapy, and conditions that do not outwardly affect an individual’s ability to function. You may wish to develop a procedure for addressing and documenting requests for reasonable accommodation.

–Nora Adukonis

The Two Minutes Series provides a broad overview of a legal issue, and is not intended to be a substitute for legal advice.  If you need advice regarding ADA compliance, let us know.

According to a survey by career publisher Vault, Inc., 89 percent of employers said they would watch a video résumé if they received one.  But others worry that vesumés provide clues to a candidate’s race, gender, national origin, age, or handicap.  Will watching these videos increase the risk of a discrimination suit?

If video resumes were required as part of the application process, certain groups might not have the funds or expertise to produce them and could effectively be excluded.   But we know of no employers who have such a requirement.   Rather, it is the candidate’s choice to supply a video resume and the candidate’s decision about what is said and how it is presented.  If a candidate sends you a video, he is in a poor position to complain that you watched it.

“No one has yet filed a major lawsuit for discrimination by video résumé,” Time.com reported in 2007, and we haven’t found any either.  That’s probably because whatever the video discloses about the job-seeker will be just as obvious in an interview.   Even a paper résumé will usually indicate something about the candidate’s gender, age, and ethnic background.   Naturally, these characteristics should never be part of the employment decision, and hiring procedures should include safeguards to prevent the appearance of discrimination.

According to the U.S. Equal Employment Opportunity Commission:

it is not illegal for an employer to learn the race, gender or ethnicity of an individual prior to an interview. Of course, Title VII requires that all individuals be provided equal, nondiscriminatory treatment throughout the hiring process. If an employer representative observes a job seeker in a video clip, and either learns or surmises the person’s gender, race, or ethnicity, such knowledge could increase the risk of discrimination or the appearance of discrimination. Employers need to take care in training hiring officials and human resources staff about the appropriate responses when gender, race, or ethnicity are disclosed during recruitment. Video clips might be analogized to information on a résumé that clearly tells an individual’s race, such as, “President, Black Law Students Association.” In this situation, as with the video clip, the employer needs to focus on the person’s qualifications for the job.

The fact that a resume is on video, rather than paper, should not subject an employer to an increased risk of suit.  In either case, the employer should be ready to show the hiring decision was based on the candidate’s qualifications and not on impermissible factors.

–Joel Rosen

Disclaimer—This office represents search firms, which may use or produce video resumes, and that relationship may affect our conclusion.  This posting does not constitute legal advice, and you should obtain an opinion from your own lawyer.