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Court Changes Standard                For Discrimination Lawsuits

As the result of a June 9, 2003 Supreme Court decision, employees who sue for discrimination may find it easier to prove discrimination, or at least get their cases before a jury, according to the Ison Law Group.

The unanimous decision held that direct evidence of discrimination is not required in order for an employee to get a “mixed motive” jury instruction in a Title VII case. I

Instead, the Court held that circumstantial evidence is enough to get a “mixed motive” charge. A “mixed motive” instruction tells the jurors that if the employees’ mistreatment was motivated by both gender (a protected characteristic) and lawful reasons, she was entitled to damages unless the employer could show it would have fired her regardless of her gender. This decision held that direct evidence that she was fired because she was a woman was not required.

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Resumes Win Interviews, 
But References Win Job Offers

by Heidi M. Allison

Inquiring minds want to know, and no minds are more inquiring than those about to hire you. Rest assured, you will be investigated. As a rule of thumb, the better the job, the higher the pay, the tougher the screening process. If you are up for a good job at a visible company your references will be checked in great detail. Be aware that your list of references is simply the beginning of the investigation a prospective employer will conduct.

When a prospective employer has completed the first round of interviews and you are in the group of top candidates, the next logical step is to check your references and interview those individuals to whom you reported. Are you certain these individuals will seal the deal or will they blow it away? If you are like most people you probably haven't given your references much thought. Instead you have focused on your resume, interview skills, networking and what to wear to the interview. Now the focus shifts. Your biggest concern should be the quality of your references and recommendations from past employers, because they can make or break your chances.

About half of all references that get checked range from mediocre to poor. So it is very possible that the great job you lost out on at the last moment had nothing to do with your lack of skills, or being overqualified. It could have had more to do with what one of your references or past employers said about you. So if you are concerned that someone, somewhere, might be giving you a bum rap, there is a one in two chance that you are right. That's a frightening scenario when your livelihood is at stake.

Here is just a sampling of the comments HR people and line managers hear when they check references: "Our company policy prohibits us saying anything. All we are able to do is verify dates of employment and title." Then they have gone on to say things like, "Check his references very, very carefully." Other common conversations include: "Are you certain he gave my name as a reference?"; "Although we are currently in litigation..."; "We miss him very much."; "After we settle our lawsuit"; "Let me see what the paperwork says I am able to give out regarding ______."; or they seem very surprised and make other innuendoes such as: "Is he still in this field?"

References and past employers won't call and warn you that they are not going to be complimentary. With company policies changing (not that many choose to follow them anyway), new employees in HR Departments, new laws concerning references, and company liability when they give references, the reference situation is ever-changing and is therefore very volatile. So, you are well advised to take more control of your career momentum by finding out just what every potential reference will say about you. If the odds hold, as they will, those references will range from stellar all the way on down; yet when you know who is going to say what about you, you can pass on your best references with greater confidence. Plus you will have the opportunity to stop references saying things that are not true. Here are ten winning ways to utilize your references:

I. Make a list. Start by making a list of all of your prospective references. Begin with the first job that is relevant in management of your career today. You need to select those who have carefully observed your job performance. Your references need to have seen you in action, hopefully performing well in adverse conditions. But beware whether you list them or not, your past employers will be contacted. Be sure to gather all important contact data about every potential reference including: Name; Title; Company; Address; Telephone Number; Fax Number; e-mail Address. Other individuals that may prove to be useful as references include: Colleagues; Subordinates; Suppliers & Clients; Volunteer Committees; Pro Bono Clients.

II. Narrow the list. After you have made your list of references, select those that you feel will be most willing to give you an excellent report. A typical list of references should include five to ten names, depending on the amount of experience a candidate has accumulated.

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HIGH COURT SETS GUIDELINES ON CONSTRUCTIVE DISCHARGE 

In an important ruling on sexual harassment, the Ison Law Group reports, the U.S. Supreme Court recently clarified the law surrounding constructive discharge claims as well as on employers' ability to assert an affirmative defense to such claims.

In its June 14 ruling, the Court said that employees who are compelled to quit because of sexual harassment resulting in intolerable working conditions and a hostile work environment have a right to sue their employers under a constructive discharge theory, Ison explains.

However, in an 8-1 decision, the Supreme Court held that an employer can assert a defense in such situations by demonstrating that it exercised reasonable care to prevent and promptly correct the wrongful behavior and that the employee failed to take advantage of preventative or corrective measures.

If, however, the hostile work environment leads to a tangible employment action, such as a demotion or cut in pay, the affirmative defense is not available. Pennsylvania State Police v. Suders, No. 03-95 (June 14, 2004).

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