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Pennsylvania Court Strikes Down Law Banning Employment Due To Criminal Record

Jon Allison

Jon Allison’s Monday Blog

Last week, just before the New Year, the Commonwealth Court in Pennsylvania found unconstitutional a law that banned those convicted of crimes from ever working at nursing homes or long-term-care facilities. The Older Adults Protective Services Act specifically prevented anyone who had been convicted of any crime, no matter how long ago, from ever being employed full-time at a nursing home or long-term-care facility. The Court unanimously ruled that the law violated the due process rights of law abiding citizens who had been in trouble in many cases several decades earlier. Plaintiffs in the lawsuit had convictions between 15 and 35 years prior for drug possession, writing bad checks, disorderly conduct, assault and theft. All of them had clean records since their convictions. Many had, in addition to being prevented from finding work, been fired from multiple jobs due to their criminal records.  Find more information in this NPR article.

 

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Papa Don’t Preach

Jon Allison

Jon Allison’s Monday Blog

Shipley’s Donuts, a Katy, Texas franchise violated the Pregnancy Discrimination Act when it ordered an employee it suspected of being pregnant to certify that she could continue working or take an unpaid leave of absence and by firing her when she refused the order. Shipley’s owner and general manager learned that a Shipley’s employee, Brooke Foley, might be pregnant. Shipley’s then ordered Foley to obtain a doctor’s release stating that her pregnancy was not “high-risk” and that she could continue performing her duties. Foley had not asked for any pregnancy-related accommodation. She refused the order and told Shipley’s that it could not require her to get such a certification. Shipley’s then terminated Foley’s employment. Under the Pregnancy Discrimination Act, an employer cannot require a pregnant employee (or in this case an employee suspected of being pregnant) to provide medical certification of the ability to continue working unless the employee requests an accommodation in connection with the pregnancy. Shipley’s learned this the hard way. Foley filed suit and the case settled earlier this month for $45,000 and other nonmonetary remedies.

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Discrimination In Jury Selection

Jon Allison

Jon Allison’s Monday Blog
Last week the Supreme Court heard arguments in Foster v. Chatman.  Tim Foster, an African-American male, was tried, convicted and sentenced to death for the murder of a white victim.  The Supreme Court is considering whether prosecutors engaged in race discrimination by using their peremptory strikes to exclude African-American jurors and then arguing to the all-white jury that the death penalty was appropriate to deter other people from the projects from doing the same thing.
There are rules for jury selection.  Prospective jurors are generally questioned by lawyers for the prosecution and the defense.  The Judge then removes some jurors if there is some reason those potential jurors can’t serve.  The lawyers then have an opportunity to use “peremptory strikes” to eliminate jurors without a stated reason.  Jurors cannot be struck due to race or gender.  Following the Batson v. Kentucky case in 1986, if the defense could show a racial pattern in peremptory strikes by the prosecution, the potential jurors would not be eliminated unless the prosecution could articulate a nonracial reason for the strike.  The problem is courts have been all too willing to accept the reasons articulated even where it appears race is the real reason.
Studies from numerous jurisdictions have shown that African-American jurors are significantly more likely to be eliminated from the jury.  Studies also show that racially diverse juries are less likely to convict and less likely to impose the death penalty.  In the Foster trial, the prosecutor used peremptory strikes to exclude all four qualified African-American jurors.  The defense complained but the prosecutor articulated nonracial reasons and the court accepted them.
In 2006, 19 years after the trial, the defense obtained the prosecutor’s notes.  There was much to suggest race was the real reason for the peremptory strikes.  The names of the African-American prospective jurors were marked with a “B” and highlighted in green.  There was a key that said green highlighting meant black juror.  The prosecution created strike lists where striking all of the African-American prospective jurors was prioritized over any white prospective juror.  The African-American jurors were ranked and there were notes that saying “if it comes down to having to pick one of the black jurors [she] might be ok.”
For more on this topic, see . . .
United States Supreme Court to Consider SCHR Death
Supreme Court Takes On Racial Discrimination In Jury
Supreme Court to examine racial divide in jury selection
The Supreme Court Considers Race-Based ‘Strikes’ Again

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New Study Shows Age Discrimination Has Greater Impact On Female Applicants

Jon Allison

Jon Allison’s Monday Blog
I blogged about age discrimination a couple of times last month.  Last week, the Washington Post reported that a new study shows age discrimination in hiring has a greater impact on women than men.  The study is probably the largest field experiment ever testing age discrimination in the hiring process.  According to the study, resumes of older women get far fewer callbacks than those of older men as well as all younger applicants.  The researchers sent out over 40,000 resumes.  The researchers studied different job categories, including administrative, sales, janitorial and security.  Overall, the study showed a strong bias against hiring older workers.  But the researchers observed that when they focused in on older female applicants, there was greater disparity.  For example, for administrative jobs, female applicants 49 to 51 years of age got 29 percent fewer callbacks than those age 29 to 31.  Applicants age 64 to 66 got 47 percent fewer callbacks.  Similar results were found for sales jobs.  The researchers note that women tend to live longer on average than men and therefore may benefit from staying in the workforce longer than men.  This won’t help.

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The Growing Problem of Age Discrimination

Jon Allison

Jon Allison’s Monday Blog
A couple of weeks ago I wrote about college professors and their reluctance to retire.  They are, of course, in the position of being able to choose to stay on because those who have tenure can’t be terminated unless there is cause to do so.  Even Professor Marcy, the Astronomer who resigned after pressure from colleagues following a sexual harassment investigation, wasn’t fired.
The majority of us do not have the job security of college professors and many older workers are experiencing age discrimination.  Take the example of Leslye Evans-Lane.  She left her teaching job in New Mexico when she was 58 because she and her husband were moving to Oregon.  She assumed that with her extensive experience she’d find work.  Instead, it took 2 years to find a part-time teaching gig.  Then, after six months on the job, the position became full-time and she was terminated and replaced with a younger teacher.  She wasn’t even interviewed for the full-time position.
According to AARP two-thirds of workers age 45 to 74 say they have experienced or witnessed age discrimination.  It’s not likely to get better.  There are a lot of baby boomers and people are living longer.  Many older workers are reluctant to retire due in part to concerns over having enough in savings to last as well as simply wanting to work.  Employers on the other hand have concerns about job performance decreasing with age, although research does not support those concerns.  It’s also less expensive to employ younger workers.  This article goes in to more detail.

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