Target Hiring Discrimination Complaint Resolved – $2.8M Settlement

hiring discrimination complaintTarget hiring discrimination complaint has been resolved by Target agreeing to a $2.8 million dollar settlement deal. The complaint involved several employment assessments used by Target in its hiring practices that the Equal Employment Opportunity Commission (EEOC) found to be discriminatory. One of these assessments, which was performed by psychologists, was determined by the EEOC to be a violation of the Americans with Disabilities Act (ADA).

Neither EEOC nor Target has disclosed exactly what this psychological assessment consisted of. However, the EEOC stated that the test was a “pre-employment medical examination,” which violated a provision of the ADA that prevents employers from subjecting applicants to medical examinations before they have received job offers.

Medical Questions and Examinations – What is Allowed and What is Not

The ADA states that its prohibition against discrimination “shall include medical examinations and inquiries.” It also states that, prior to employment, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability, or as to the nature or severity of such disability.”

It should be noted that the ADA also has a provision stating that a covered entity may make pre-employment inquiries into an applicant’s ability to perform job-related functions. The EEOC’s finding of discrimination in this case suggests that a psychologist’s assessment of a prospective employee’s response to questioning is not considered an acceptable inquiry into his or her ability to perform job-related functions.

An employer may require a medical examination after a job offer has been made, and it can even make the offer conditional on the results of the examination. However, this is only possible if:

  • All entering employees are subjected to such an examination, regardless of disability
  • The results of such examination are only used in accordance with the ADA
  • Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record (There are several exceptions to this confidentiality, as there are some specific circumstances in which supervisors, managers, first aid and safety personnel, and government officials can be given access to information about employees’ health.)

Acceptable Questions

The EEOC has enforcement guidelines on pre-employment disability-related questions and medical examinations, and these guidelines specify certain types of questions than an employer is allowed to ask an applicant prior to a job offer. These include:

  • Questions about an applicant’s ability to perform specific job functions – such as stating the physical requirements of the job, and asking if the applicant can satisfy these requirements
  • Questions about an applicant’s non-medical qualifications
  • Questions asking an applicant to describe or demonstrate how he or she would perform job tasks

[Read more…]

Does Your Policy on Employee Meal Breaks Violate California Law?

California’s Labor Code lays out the requirements for when employees must receive meal breaks. Under Section 512(a), an employee with a work period of more than 10 hours per day must be allowed two meal periods that are at least 30 minutes long. If the employee has worked fewer than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee.

That may sound fairly straightforward. However, Industrial Wage Commission (IWC) Order No. 5-2001 has a provision, Section 11(d),that states, “Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight hours in a workday may voluntarily waive their right to one of their two meal periods.” (The order does not place any limitations on the length of the shift.) This has raised a question for employers in the health care industry – if an employee works for more than 12 hours, can the second meal break be waived?

Gerard v. Orange Coast Medical Center

A California Court of Appeal has weighed in with an answer. In Gerard v. Orange Coast Memorial Medical Center, the court ruled that a hospital violated the rights of its employees by directing them to work shifts in excess of 12 hours without two meal breaks. The court went on to declare that Section 11(d) of IWC order 5-2001 is partially invalid.

The ruling states: “We agree that the conflict between Section 11(d) and Section 512(a) creates an unauthorized additional exception to the general rule set out in Section 512(a), beyond the express exception for waivers on shifts of no more than 12 hours. ‘Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.’”

The court then points to the text of Section 516 of the Labor Code, which states that the IWC may adopt or amend working conditions with respect to meal periods, except as provided in Section 512. In light of this exception, the opinion states that the California legislature intended to prohibit the IWC from amending its wage orders in ways that would conflict with Section 512’s meal period requirements.

In partially invalidating Section 11(d), the court ruled that its decision would be applied retroactively. It held that the plaintiffs are entitled to seek premium damages for any failure by the hospital to provide mandatory second meals that took place within the previous three years. [Read more…]

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