1. 1 Agency Processed Employment Discrimination Claims in Alaska: Recent Developments Peter C. Partnow Lane Powell, LLC

2. 2 GENERAL CONSIDERATIONS Where claims may be made Equal opportunity commission Alaska state commission for human rights Anchorage equal rights commission Other agencies (OFFCP, office of civil rights, etc.) Private law suits (42 usc sec. 1981, etc)

3. 3 General Considerations Protected classifications Race Religion Color National origin Age Physical disability Mental disability Sex

4. 4 General Considerations Protected classifications in Alaska Marital status Change in marital status Pregnancy Parenthood

5. 5 General Considerations Retaliation prohibited RETALIATION PROHIBITED BY TITLE VII, THE ADEA, AND THE ADA (2000e-3(a) of Title VII, 623(d) of the ADEA, and 12203 of the ADA) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because He has opposed any practice made an unlawful employment practice by this subchapter, or because He has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

6. 6 General Considerations RETALIATION PROHIBITED-ALASKA LAW—AS 18.80.220(a)(4) It is unlawful for an employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against a person because the person has opposed any practices forbidden under AS 18.80.200 - 18.80.280 or because the person has filed a complaint, testified, or assisted in a proceeding under this chapter

7. 7 General Considerations Public accommodation discrimination (AS 18.80.230) “Owner, lessee, manager, agent, or employee to refuse, withhold from, or deny to a person goods, facilities, advantages, or privileges because of...” BROOKS V. Wal-mart Stores, inc. Aschr no. J-08-0069 Toliver v. Aschr, 279 p.3d 619 (alaska 2012)

8. 8 EEOC Enforcement Guidance : Arrest & Conviction Records April 25, 2012 Consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964

9. 9 EEOC Enforcement Guidance : Arrest & Conviction Records April 25, 2012 Background Percentage of adults processed by the criminal justice system increased from 1.8% in 1991 to 3.2% in 2007

10. 10 EEOC Enforcement Guidance : Arrest & Conviction Records Background African Americans and Hispanics are two to three times more likely to be involved in the criminal justice system than Caucasians

11. 11 EEOC Enforcement Guidance : Arrest & Conviction Records Background 1 OF 17 Caucasian Adults males some prison 1 of 6 Hispanic adult males some prison 1 of 3 African American adult males 28% of all arrests were African Americans But only 14% of the population is African American

12. 12 EEOC Enforcement guidance: Arrest & conviction records Background 92% of employers do at least some criminal record background checking Many errors or lack of completeness In criminal history records

13. 13 EEOC Enforcement Guidance : Arrest & Conviction Records Rationale for background checks: 1.Control theft, fraud, etc. 2.Control workplace violence 3.Avoid liability for negligent hire 4.Legally required to do so

14. 14 EEOC Enforcement Guidance : Arrest & Conviction Records Disparate Treatment Discrimination can be found if member of A protected class was treated less favorably based on a criminal record than was similarly situated white Employee or applicant

15. 15 EEOC Enforcement Guidance: Arrest and Conviction Records Disparate Impact Discrimination can be shown if employer’s facially neutral policy of using criminal history disproportionately screens out protected class members and the policy/practice is not job related

16. 16 EEOC Enforcement Guidance : Arrest & Conviction Records Relevance determined by the Green Factors: 1.Nature and gravity of the offense 2.How recent was the offense 3.Nature of the job being sought

17. 17 EEOC Enforcement Guidance : Arrest & Conviction Records Arrests Arrest itself may not be used. Conduct, if proved, may be used, If relevant

18. 18 EEOC Enforcement Guidance : Arrest & Conviction Records Convictions “ We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent rank of the unemployed.”

19. 19 EEOC ENFORCEMENT GUIDANCE : ARREST & CONVICTION RECORDS Convictions Where there is disparate impact, employer must show business necessity through link between the criminal conduct and risks of the job

20. 20 EEOC Enforcement Guidance : Arrest & Conviction Records Best practice 1.Don’t seek arrest records 2.Check job relatedness 3.Seek information after tentative selection

21. 21 EEOC Strategic Enforcement Plan Background 1.38% increase in charges 2.30% funding decrease 3.Staffing decreases 4.Retaliation claims

22. 22 EEOC Strategic Enforcement Plan Background 261 law suits filed 2011 122 law suits filed in 2012 $365 million in recoveries in fy 2012

23. 23 EEOC Strategic Enforcement Plan Background Fy 2011 99,947 total charges filed 79 alaska charges

24. 24 EEOC Strategic Enforcement Plan Three objectives 1.Strategic law enforcement 2.Education and outreach 3. Excellent and consistent service

25. 25 EEOC Strategic Enforcement Plan National priorities 1.Eliminate barriers to recruitment & hire 2.Protect vulnerable workers 3.Address emerging issues 4.Preserve access to legal system 5.Combat harassment

26. 26 EEOC Strategic Enforcement Plan Barriers to Recruitment & Hire Target class-based disparate treatment and facially neutral hiring practices adversely impacting protected classes: 1.Steering protected group members to specific jobs 2.Restrictive application processes 3. Use of discriminatory screening tools

27. 27 EEOC Strategic enforcement plan Vulnerable workers Unaware of rights, unable or unwilling to exercise rights Immigrants Migrant workers

28. 28 EEOC Strategic Enforcement Plan Emerging Issues 1.ADA—covered disabilities 2.Accommodating pregnancy 3. LGBT protection under title vii

29. 29 EEOC Strategic Enforcement Plan Access to Legal System Retaliation, overbroad waivers, overbroad settlement provisions, and failure to retain required records

30. 30 EEOC Strategic Enforcement Plan Combatting Harassment EEOC V. THE MCPHERSON COMPANIES, INC., NO. 2:10-CV-02627 (D. ALA NOV. 14, 2012)

31. 31 EEOC Conciliation Obligation EEOC V. LA RANA LLC NO. 11-00799 CIV (D. HAWAII, AUGUST 22, 2012)

32. 32 EEOC Imposition of the 300-day Limitation Period EEOC V. GLOBAL HORIZONS, INC., NO. CV 11-3045-EFS (E.D. WASH JULY 27, 2012) EEOC V PRINCETON HEALTHCARE SYSTEMS, 2012 us Dist Lexis 150267 (D.N.J OCT 18, 2012) EEOC V. U.S.STEEL CORPORATION, NO.10-CV-1284 (W.D. PA. JULY 23, 2012) EEOC V BASS PRO OUTDOOR WORLD, NO 4-11-CV-03425 (S.D.TEX. MAY 31, 2012)

33. 33 EEOC Same Sex Discrimination EEOC V. THE MCPHERSON COMPANIES, INC., (D. ALA 2012) “This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, disgusting, profane utterances in the workplace.”

34. 34 EEOC Who is a Supervisor? VANCE V BALL STATE UNIVERSITY, 646 f.3d 461 (7 th Cir. 2011)

35. 35 ALASKA LAW Who is a Supervisor? VECO V ROSEBROCK, 970 P.2D 906 (ALASKA 1999)

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