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Tips for sorting out a few thorny employment discrimination questions

Employers face tough personnel decisions every day, and the threat of litigation makes the decision process even more problematic. Recently a group of attorneys tackled a couple of situations that present discrimination hazards–whether it’s too risky to reduce an older employee’s hours and whether it’s possible to lawfully check out an applicant’s workers’ compensation history. 

Age discrimination threat
An employer asked about the risks of reducing the hours of a 63-year-old employee to part time. In addition to losing full-time pay, the employee also would become ineligible for benefits. How much of an age discrimination risk would such an action pose?

“You are walking a fine line,” says Karen Gwinn Clay, an attorney with The Kullman Firm in Jackson, Mississippi. “Does the reduction in hours affect only the older employee, or are others in her department or job classification also seeing a reduction? An employee who is subject to a reduction in hours regardless of her protected classification will not have a viable claim. If your action is directed solely at the 63-year-old employee, you’d better have a solid nondiscriminatory reason for your decision.”

Rachel E. Burke, an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio, agrees that the employer needs to assess the risk. “There’s no question that taking an adverse employment action like a reduction of hours from full- to part-time against a 63-year-old employee generally entails more risk than taking the same action against a younger employee,” she says. But handled correctly, it’s possible to justify the change.

Burke suggests that the employer ask certain questions, including:

  • Why is the change being made?
  • Is the employee being singled out from a group of coworkers with the same or similar job duties?
  • What are the ages of the coworkers who aren’t affected?

Burke says a reduction in hours made for a specific business reason is “less likely to suggest the possibility of age discrimination.” She cites the example of a salesperson and a major customer that stops doing business with the employer. With the loss of such a customer, “there’s a logical business reason for reducing the employee’s hours,” she says. Also, if an entire group of workers of different ages is converted to part time, the decision isn’t based on the 63-year-old’s age.

Workers’ comp background checks
Another sticky situation involves pre-employment background checks into an applicant’s workers’ compensation history. A manufacturer asks if it can conduct prehire background checks that focus on a potential employee’s history of workers’ compensation claims.

Jason R. Mau, an attorney with Greener Burke Shoemaker Oberrecht, P.A., in Boise, Idaho, says such a check may run afoul of the Americans with Disabilities Act (ADA) if the applicant is rejected based on a previous workers’ comp claim. He also points out that the Equal Employment Opportunity Commission may see such background checks as an attempt to obtain medical or disability information.

“A better practice would be to ask questions focused on whether a candidate has any restrictions that may affect her ability to perform a certain task,” Mau says. “If she does, you have the right to obtain information related to a possible accommodation.”

Reggie Gay, an attorney with the McNair Law Firm in Anderson, South Carolina, also says using workers’ comp history to reject applicants may result in a discrimination claim. “That said, certain information regarding prior workers’ comp claims can assist employers, but it must be obtained correctly,” he says.

Gay points out that under the ADA, employers may not discriminate against a qualified individual who can perform the essential functions of a job with or without a reasonable accommodation.

“Because an applicant’s workers’ comp history is considered health and disability information under the ADA, to comply with the Act, you must not ask about an applicant’s prior workers’ comp claims until you have made a conditional job offer,” Gay says.

If a postoffer background check turns up a history of workers’ comp claims, the employer has a decision to make about whether to finalize the hiring process. Gay says a job offer should be rescinded only in very limited circumstances, which include:

  • The applicant lying about his workers’ comp history or medical condition, usually during a medical exam;
  • A history of false claims;
  • Past claims that demonstrate that the applicant is a threat to himself or others in the opinion of a medical expert;
  • Past claims that demonstrate that the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.