Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits.

How biased are you? The courts want to get into your head

It used to be that you could keep your religious beliefs about sexual orientation to yourself. Not anymore. As a new court ruling shows, if you’re the defendant in a sexual-orientation discrimination lawsuit, a court may want to get inside your head in order to help prove WHY you are discriminating.

Case In Point: Jewelry store employee John Fairchild found himself fired just one day after he told the store owner that he was gay and his daughter was a lesbian. Fairchild says the owner was known to openly declare gays and lesbians “repulsive” and often quoted the Bible claiming homosexuality was a sin. Fairchild sued under New York state law for discrimination based on sexual orientation.

During the discovery phase, Fairchild’s lawyer sought to quiz the store owner about his religious beliefs. Specifically, he wanted the owner to answer these three questions:

  • Does he believe “gays and lesbians are doomed to eternal damnation?”
  • Does he believe “homosexuality is a sin against God?”
  • Does he believe homosexuals are “repulsive?”

The store owner refused to answer, arguing that the questions violated his constitutional rights of privacy and freedom of religion. Plus, he said, Fairchild could twist those answers to prove the owner intended to discriminate.

In the end, the judge ordered the store owner must answer the questions and divulge his religious beliefs. The judge said that although courts should closely guard citizens’ religious freedoms, a court can compel people to divulge their religious beliefs whenever “it appears that one’s religion is relied upon to form a basis of discrimination against a person who is a member of a protected class."

Clearly, a jury will find the owner’s answers fascinating ... and possibly costly. (Fairchild v. Riva Jewelry Mfg. Inc., N.Y. Sup. Ct., No. 101169/2006, 6/28/07).

What does this new ruling mean to you?
1. Religion can’t be used as an excuse to discriminate. The court noted that “no person should be permitted to use (religious) rights as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination.“

2. Bigwigs are not exempt. Company presidents can get sued for allegedly violating discrimination laws. Seems like common sense, but some of them still believe they are untouchable.

3. Know the ”extra" anti-bias protections offered by your state, city. You know that federal anti-discrimination law bans job bias based on race, sex, age, religion, national origin, disability and pregnancy. But don’t forget that state, city and county laws often go further, banning discrimination in the form of a person’s sexual orientation, gender identity or even height or weight. For example, in this case, federal law does not protect sexual orientation but New York state law does.

4. Don’t let discrimination policies collect dust. Make sure your policy includes all protected characteristics based on federal, state and local laws. Then don’t just bury it in your employee handbook. E-mail it often as a reminder. It can help keep the culture free from prohibited conduct.



Employment Background Check Guidelines: Complying with the Fair Credit Reporting Act, conducting credit background checks and running a criminal check to avoid negligent-hiring lawsuits.


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