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Negative Credentials: Fair And Effective Consideration Of Criminal Records, Stacy A. Hickox, Mark Roehling
Negative Credentials: Fair And Effective Consideration Of Criminal Records, Stacy A. Hickox, Mark Roehling
Stacy A. Hickox
The incarceration rate for groups including applicants who are protected against discrimination has had a significant effect on their potential for employment. The potential for adverse impact and disparate treatment claims by ex-offenders who are rejected under these policies will be discussed. We will also analyze the results of a survey of employers in Michigan regarding what information about ex-offender applicants are considered in making hiring decisions. These results have implications for other employers who should be establishing a business necessity or legitimate reason for the rejection of ex-offenders, and for courts who are reviewing those practices.
Clearing The Smoke On Medical Marijuana Users In The Workplace, Stacy A. Hickox
Clearing The Smoke On Medical Marijuana Users In The Workplace, Stacy A. Hickox
Stacy A. Hickox
Medical marijuana users are protected against criminal prosecution in 15 states, yet their protection as employees is much less certain. Courts in several states with medical marijuana statutes have refused to provide protection for medical marijuana-using employees, even where the use has had no effect on their performance. Yet these decisions may not control the rights of medical marijuana users in other states where the statutory wording differs. Employers looking for guidance should consider the protections of the Americans with Disabilities Act (ADA) and state disability nondiscrimination statutes. Many medical marijuana users may qualify for protection as persons with disabilities, …
The Underwhelming Impact Of The Americans With Disabilities Act Amendments, Stacy A. Hickox
The Underwhelming Impact Of The Americans With Disabilities Act Amendments, Stacy A. Hickox
Stacy A. Hickox
The 2008 amendments to the Americans with Disabilities Act (ADA) were intended to expand the protection against discrimination for persons with disabilities beyond the Supreme Court’s narrow interpretation of who is “disabled.” While the amendments and the proposed Equal Employment Opportunity Commission regulations address some of the Court’s narrow interpretations of the ADA, lower courts may still be able to limit coverage of persons with disabilities who are still able to perform tasks which utilize the major life activity which is limited by their impairment, and persons who have impairments with temporary or intermittent effects. Claimants may also be excluded …
Standardizing Liability For Negligent Hiring Of Ex-Offenders, Stacy A. Hickox
Standardizing Liability For Negligent Hiring Of Ex-Offenders, Stacy A. Hickox
Stacy A. Hickox
Employers considering hiring applicants with criminal records face a dilemma. Potential liability for negligent hiring may prompt employers to refuse to hire ex-offenders, since the employer could be liable for harm caused by an employee who has a criminal record, if that harm was foreseeable. Yet the negligent hiring case law provides little guidance for an employer trying to determine when harm is foreseeable. At the same time, nondiscrimination laws require that employers not exclude applicants based solely on their criminal records, since exclusion of ex-offenders will likely have an adverse impact on applicants of color. To resolve this dilemma, …
Transfer As An Accommodation: Standards From Discrimination Cases And Theory, Stacy A. Hickox
Transfer As An Accommodation: Standards From Discrimination Cases And Theory, Stacy A. Hickox
Stacy A. Hickox
This article explores the conflict between the desire of an employee with a disability to transfer as an accommodation and an employer’s belief that another applicant for that position is better qualified. Federal circuit courts disagree as to whether the accommodation requirements of the Americans with Disabilities Act extend to the transfer of an employee as an accommodation if the employer believes that some other person is better qualified for that position. After exploring this conflict among the courts, a review of cases where an applicant for hire or promotion has alleged discrimination provides guidance for courts reviewing the denial …
Ensuring Enforceability & Fairness In The Arbitration Of Employment Disputes, Stacy A. Hickox
Ensuring Enforceability & Fairness In The Arbitration Of Employment Disputes, Stacy A. Hickox
Stacy A. Hickox
Private arbitration of employment law claims has become common in recent years. The Supreme Court has shown a strong preference for requiring that an employee pursue an employment claim through an arbitration program rather than seeking to enforce his or her rights in court. At the same time, legislation has been introduced to try to protect the rights of employees who, without an arbitration program in place, would have the opportunity to assert their statutory rights in court. This article explores what safeguards should be in place to assure that employers can rely on the enforceability of an arbitration program …