Lawrence N. Lavigne, Esq., L.L.C.
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Pretext might disguise employment discrimination

Federal and state lawmakers have worked hard to provide legal protections against employment discrimination to workers. For example, those protections can shield whistle blowers that come forward to report an employer’s unlawful actions. Federal and state laws also protect employees against wrongful termination on several enumerated categories, as well as against retaliation for reporting or filing a claim of discrimination or harassment.

An attorney can counsel a worker on the most up-to-date protections offered by state and federal employment laws. Legal workplace protections may even start as soon as one applies and interviews for a job. New Jersey, along with many states, has considered multiple limitations on an employer’s ability to run credit history checks against prospective employees. One rationale is fear of a disparate impact among minorities, who may have disproportionately low credit scores.

Yet according to a recent study, states that have passed bans on employer credit checks did not avoid a disparate impact. Instead of inquiring about credit, employers added additional screening questions, such as requiring a bachelor’s degree and/or more years of experience. In some instances, African-American job applicants were put at more of a disadvantage in states where employers couldn’t request credit checks.

One of the challenges in examining a potential employment claim is finding evidence that proves discrimination, sexual harassment or other illegal behavior. In jobs were the employment relationship was “at-will,” the employer may justify a termination or adverse employment action as based on permissible reasons, such as poor job performance. For this reason, we recommend that an employer who suspects that his or her rights were violated consult with an attorney as soon as possible. A proactive discussion may permit a strategy to be put in place before an employer takes final action.

Source: Washington Post, “The law was supposed to reduce discrimination. But it made hiring more racially biased,” Jeff Guo, March 23, 2016

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