EEOC’s Guidance on the Use of Criminal History Records Under Title VII Comes as New News to Many Small Businesses

Posted on June 28th, by Editor in Counseling & Compliance Training. No Comments

By: Frank Nardulli

In our post on April 30, 2012, we highlighted the EEOC’s recent guidance on the use of criminal history records to discriminate against job applicants.  To read our original post click here.  As businesses large and small now look to make sense of the new guidance, and to tailor appropriate policies, many are discovering that they may have been unknowingly violating the law.  For some interesting thoughts on the EEOC’s Guidance on the use of criminal history records under Title VII from the perspective of small businesses, check out this well-sourced post by New York Times reporter Robb Mandelbaum and his related article.


Cheryl Orr Interviews Kaplan In-House Counsel For Cover Story in First Chair Magazine

Posted on June 7th, by Editor in Counseling & Compliance Training. No Comments

Cheryl Orr’s  interview of Janice Block, General Counsel & Executive Vice President of Kaplan, Inc., and Stephanie Hart, Vice President & Associate General Counsel, is the cover story in the inaugural issue of First Chair magazine.

Cheryl, co-chair of the Labor and Employment Practice Group, sat down with Janice and Stephanie to discuss the impact of a changing business and regulatory environment on the for-profit higher education industry generally, and Kaplan’s labor and employment department, specifically. The three also discussed keys to success for outside counsel and the need for work-life balance.

Janice noted, “We view our external counsel as true partners for us on the matters we work on together.  The same respect, collegiality, support, shared objectives, and open communication (Stephanie discussed as existing in their legal department) has to carry forward in our relationships with our law firm lawyers.”

First Chair magazine … Read More »


Seventh Circuit Expands § 1981 Coverage to Include Individual Liability for Retaliation Under “Cat’s Paw” Theory

Posted on June 4th, by Editor in Counseling & Compliance Training. No Comments

By: Frank M. Nardulli

The Seventh Circuit has held that an employee with an unlawful retaliatory motive may be individually liable under § 1981 for causing an employer to retaliate against a co-worker.  Section § 1981 prohibits racial discrimination in contractual relations and has been held applicable to employment matters.

In Smith v. Bray, the Seventh Circuit tackled this issue of first impression by looking to recent Supreme Court precedent endorsing the “cat’s paw” theory of employer liability under Title VII and the holdings of five circuits that the “cat’s paw” theory supports individual liability under § 1983, which provides redress for individuals whose federally protected rights have been violated.  As such, the Court held that “recognizing cat’s paw liability under § 1981 is consistent with our parallel approaches to these [non-discrimination] statutes.”

The “cat’s paw” theory, which was recognized by the Supreme … Read More »


Sixth Circuit Joins Seventh Circuit in Holding that Pre-2008 ADA Cases Requires “But-for” Showing of Discrimination

Posted on June 1st, by Editor in Counseling & Compliance Training. No Comments

By: Frank M. Nardulli

Reversing 17 years of circuit court precedent, the Sixth Circuit Court of Appeals, in an en banc decision, held that the Americans with Disabilities Act (“ADA”) requires a plaintiff to show that his or her claimed disability was a “but-for” cause for the employer’s adverse employment decision.  The decision in Lewis v. Humboldt Acquisition Corp., Case No. 09-6381 (6th Cir., May 25, 2012), marks the Sixth Circuit’s first decision analyzing the ADA’s causation standard since the Supreme Court’s decision in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009).  In that case, the Supreme Court held that a plaintiff must show that age was a “but-for” cause for the adverse action, pursuant to the Age Discrimination in Employment Act’s (“ADEA”) “because of” language, and further, the court repudiated the application of a “mixed-motives” analysis under the … Read More »




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