Minnesota Department of Human Rights

							The Rights Stuff                                                                                             Winter 2011

Minnesota Department of Human Rights




The Rights Stuff
Quarterly Publication of the Minnesota Department of Human Rights (MDHR), Winter
2011


Table of Contents
News from the Minnesota Department of Human Rights ....... Error! Bookmark not defined.2
  Obituary.................................................................................................................................. 2
     Former Department of Human Rights Commissioner James Kirkpatrick III ......................... 2
  Upcoming Event ..................................................................................................................... 3
     Roseville Regional Community Forum ................................................................................ 3
Credit History: Is it any of your employer’s business? ................................................................ 3
  Could your credit score cost you a job? .................................................................................. 4
     Taking Sides in Minnesota .................................................................................................. 5
     A “Financial Death Spiral” ................................................................................................... 6
     Minority reports ................................................................................................................... 6
     Where’s the evidence?........................................................................................................ 7
     Credit and character ........................................................................................................... 7
     Credit history is relevant, employers say ............................................................................. 8
     But how accurate is the data? ............................................................................................. 9
     The Fair Credit Reporting Act.............................................................................................. 9
     Final arguments ................................................................................................................ 10
     What They Say ................................................................................................................. 11
Two Views: On the use of credit screening in hiring ................................................................. 12
  Darryl Dahlheimer ................................................................................................................ 12
  Ron Elwood .......................................................................................................................... 17
  On Video from the Department of Human Rights: ................................................................. 20
     Your Credit History – What Should Employers Know? ...................................................... 20
How Four States Protect Credit History .................................................................................... 20


                                                                     1
   Oregon ................................................................................................................................. 20
      Exemptions include: .......................................................................................................... 20
   Illinois ................................................................................................................................... 21
      Exemptions include: .......................................................................................................... 21
   Hawaii .................................................................................................................................. 22
      Exemptions include: .......................................................................................................... 22
   Washington .......................................................................................................................... 22
For Further Reading ................................................................................................................. 22
By Rights… .............................................................................................................................. 25
   Can employer post employee photos in public waiting room? ............................................... 25
   Perfume called a hazard to employee’s health ..................................................................... 27
   Can a supervisor ask about your disability? .......................................................................... 27
   Religious discrimination against high school athlete? ........................................................... 28
   Can you ‘seal’ records of a human rights charge? ................................................................ 28
   Criminal background check turns up 24-year-old conviction ................................................. 29
   Is tenant entitled to a cat accommodation for disability? ....................................................... 30
   Discrimination because of public assistance? ....................................................................... 30
   Single mother told she’s abusing sick leave ......................................................................... 31
MDHR Community Partners ..................................................................................................... 32
Contact Information .................................................................................................................. 32




News from the Minnesota Department of Human Rights

Obituary

Former Department of Human Rights Commissioner James Kirkpatrick III
Former Minnesota Department of Human Rights Commissioner James Kirkpatrick passed away
on January 30, 2011. Kirkpatrick served as Commissioner from June 1, 2010 through December
21, 2010. He had previously served as the department’s Deputy Commissioner since 2003.

Kirkpatrick, 58, died at his home in Lakeville, surrounded by family and friends. Born on August
14, 1952, in Hampton, VA, he was raised in the town of Phoebus. After graduating from Virginia
The Rights Stuff                                                           Winter 2011

Minnesota Department of Human Rights



Tech in 1974, he joined the United States Army. After 20 years of service, he retired as an
officer, achieving the rank of Major.

“Kirkpatrick’s energy, professionalism and dedication to human rights were unwavering and
without question,” said Minnesota Department of Human Rights Acting Commissioner Wendy
Adler Robinson. “He was sensitive to injustice, and his basic sense of fairness was evident to all
who had the opportunity to work with him. These qualities will be remembered, but perhaps not
as much as his smile, his laugh, his personal warmth and the love of his family. He will be
greatly missed.”

In addition to his years at the Department of Human Rights, Kirkpatrick had served as revenue
controller for National Car Rental Systems; finance and accounting manager for LSG Sky
Chefs; administrator for the Minnesota State Attorney General; a substitute teacher for Lakeville
Public Schools; and Lakeville Soccer Traveling Commissioner.

He met his best friend and wife of 34 years, Wanda Francois at Virginia Tech. James and
Wanda went on to have three children, Sabrina K. Glenn (Ronald Glenn), Brittany J. Marzette
(Charles Marzette), and James Kirkpatrick IV (Rachel Kirkpatrick). Also, survived by his sister
Denise Wilson, extended family and friends.


Upcoming Event

Roseville Regional Community Forum
When: April 7, 2011 at 5:30 PM to 7:00 PM

Where: City Council Chambers, City Hall

2660 Civic Center Drive
Roseville, MN 55113

Topic: Creating awareness and opportunities for collaboration with local human rights
commissions

Speakers:

     Liz Jaeger, Roseville Human Rights Commission

     Beth Bibus, Minnesota Department of Human Rights

     Kristi Rudelius-Palmer, U of M Human Rights Center

Sponsored by the Roseville Human Rights Commission in partnership with the Minnesota
Department of Human Rights. Residents of Roseville and surrounding communities are invited.



                                                3
Credit History: Is it any of your employer’s business?
Sixty percent of employers now check the credit of at least some job applicants. Is it
business necessity -- or discrimination? The EEOC weighs in with a landmark lawsuit,
and legislation is proposed in Congress.


Could your credit score cost you a job?
These days, more and more companies are running credit checks on some or all job seekers.
But does bad credit equal poor performance? Is credit screening a matter of business necessity,
or discrimination?

Some call it a Catch 22: You lose your job and can’t pay your bills. Your credit rating plummets.
You look for a new job but you can’t find one – employers view your poor credit score as a
statement about your character and a risk factor they would prefer to avoid. So you slide deeper
into debt, and become even less desirable in the eyes of potential employers — a cycle from
which you fear you may never escape.

There is reason to be afraid, consumer advocates say. In Minnesota and all but four states,
employers are generally permitted to use a job applicant’s credit score in making a hiring
decision. Only Washington, Hawaii, Illinois and Oregon have laws that in most cases prohibit an
employer from considering a candidate’s credit.

These days, more and more employers are inclined to run credit checks on job seekers. A 2010
survey by the Society for Human Resource Management found that 60 percent of employers
now check the credit scores of at least some applicants. Back in 2003, only 35 percent of
employers reported checking credit scores, and in 1996 it was only 13 percent. To look at the
data another way: 40 percent of employers don’t ask for credit data. Yet some employers — 13
percent in the 2010 survey — perform credit checks on all job applicants.

In the past year or two, use of credit data in screening job applicants has become a hot topic. In
2010, bills were introduced in 18 states, including Minnesota, that would have limited an
employer’s ability to use credit information. On the federal level, a bill was introduced in the U.S.
House of Representatives, The Equal Employment for All Act (H.R. 3149), that would have
prohibited the use of consumer credit checks against prospective and current employees
nationwide, with some exceptions for jobs that involve national security or positions of significant
responsibility at financial institutions.

Though the federal bill raised the issue and rallied testimony from determined supporters and
opponents, it died in committee and never came up for vote. On the state level, efforts to restrict
employers from checking employee credit scores succeeded in only two of the 18 states where
bills were proposed — in Illinois and Oregon.

But the controversy is far from over, and in early 2011 the issue continues to gain momentum
from those who believe Americans are being unfairly denied employment due to employer credit
screening, and those who are believe that employers must be allowed to use credit scores as at
least one tool in the hiring process.
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Minnesota Department of Human Rights



The Employment for All Act is back. On Jan. 19, 2011, Rep. Steve Cohen (TN-9), who
sponsored the bill last year, introduced it again (as H.R. 321). As per last year’s bill, H.R. 321
would amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against
prospective and current employees for the purposes of making adverse employment decisions,
with some exceptions. One of the bill’s co-sponsors is Minnesota Rep. Keith Ellison, who also
co-sponsored the bill in the previous Congressional session. “Using a job applicant’s credit
history to deny employment is not fair because personal credit history is not an accurate
predictor of job performance,” said Cohen in a press release. “We should be doing everything in
our power to help people find jobs during these tough economic times – not hinder them.”

Whatever the bill’s chances in Congress, a more pivotal battle may take place in the Courts. In
December 2010 the Equal Employment Opportunity Commission (EEOC) filed an unusual
nationwide lawsuit against Kaplan Higher Education Corp., alleging that its use of credit history
discriminates against black job applicants. The EEOC contends that since at least January
2008, Kaplan has routinely rejected job applicants because of bad credit, and that this practice
has an unlawful discriminatory impact because of race, in violation of Title VII of the Civil Rights
Act of 1964. It is a violation of Title VII to use hiring practices that have a discriminatory impact
because of race and that are not job-related and justified by business necessity, according to
the EEOC.

The EEOC lawsuit seeks a permanent injunction to stop Kaplan’s use of credit histories in the
hiring process or in other employment decisions, as well as lost wages, benefits, and job offers
for candidates who were screened out by Kaplan’s use of credit information.

The issues raised by EEOC’s suit and Kaplan’s response go to the heart of the debate over
whether employers’ use of credit histories in evaluating job applicants is unfair and should be
restricted, or is justified and a sound business practice. In addition to arguing that Kaplan’s use
of credit data is discriminatory, the EEOC maintains that the practice is “neither job-related nor
justified by business necessity.” Kaplan emphatically disagrees. In public statements, Kaplan
has stated it is an equal opportunity employer, proud of its diverse work force, and defends its
policy of typically conducted background checks on all prospective employees. “The checks are
job-related and a necessity for our organization to ensure that staff handling financial matters,
including financial aid, are properly screened,” Kaplan maintains.


Taking Sides in Minnesota
In Minnesota, bills were introduced in the house and senate last session that would have
amended the Minnesota Human Rights Act to include credit history as a protected class — like
race, gender, age, disability and other classes. Currently, the Act does not prohibit an employer
from checking an employee or job applicant’s credit. However, if it could be shown that such
credit checks had a disproportionate impact on race or another protected class, an employer
facing a charge of discrimination could be required to prove that its credit screening policy was
justified by business necessity. If the employer were to argue that credit scores provide valuable


                                                  5
information related to an employee’s character, or whether an employee was likely to be
dependable, the employer could be required to show that there was no alternative,
non-discriminatory way of obtaining the same information.

The bills that would have added credit history protection to the Human Rights Act failed to pass,
and no comparable has been introduced in either house yet this session. But the proposal found
supporters and opponents, whose arguments echo many of those made in testimony before
Congress on the proposed national legislation.


A “Financial Death Spiral”
A simple reason to oppose the use of credit history for job applications is “the sheer, profound
absurdity of the practice,” noted Chi Chi Wu, a staff Attorney for National Consumer Law
Center, in legislative hearings held last September on the proposed federal Equal Employment
for All Act. The use of credit reporting in employment can only widen the gap between the haves
and have-nots, and has the potential to create a permanent class of the debt-ridden and
unemployed, caught in a “financial death spiral: the worse their debts, the harder it is to get a
job to pay them off,” Wu testified.

“It targets people who can least afford to have one more reason not to get hired — people that
need that extra job, single heads of households, women making less pay, or minorities where
the unemployment rate is higher,” said former state Sen. Jim Carlson, who sponsored last
year’s bill in the Minnesota Senate to protect credit history under the Minnesota Human Rights
Act.

The argument that the use of credit scores unfairly targets minority job applicants, as alleged in
the EEOC suit against Kaplan, is one of the cornerstones of efforts nationally and in various
states to restrict the use of this data.


Minority reports
A study by Freddie Mac in 2000 found that 48 percent of African Americans were considered to
have “bad” credit, compared to 27 percent of white Americans. An earlier study (Freddie Mac,
1996) found that African-Americans were three times as likely to have FICO scores below 620
as whites.

The disparity can be explained in part by the income gap between blacks and whites, according
to Adam Klein, a partner in Outten & Golden LLP, who also testified in a legislative hearing on
the proposed Act. But outright discrimination is often involved in denying opportunities to people
of color, Klein says, citing studies which show that African American borrowers obtain loans less
often and on worse terms, even when incomes and other factors are comparable.

Not only is the use of credit history likely to be discriminatory because of its disproportionate
impact on minorities, it also provides a convenient pretext for employers who want to engage in
discrimination that is clearly illegal under state and federal law, some say. “That’s kind of the
second layer of discrimination — they’re looking for some reason to not hire or not rent to
minorities,” says Carlson. Jennifer Schaubach, a lobbyist for Minnesota’s AFL-CIO, which
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Minnesota Department of Human Rights



supported Carlson’s bill last session, is also concerned that existing laws allow credit to be used
as a tool to weed out applicants employers consider undesirable, for reasons that are legal or
not. “They can just say, we really don’t want to hire this person, so I bet they have bad credit.
Let’s pull their credit report.”


Where’s the evidence?
One who bristles at the argument that employers’ use of credit history unfairly targets minorities
or is likely to be a pretext for illegal discrimination is Jeremy Estenson, who served as a lobbyist
for the Minnesota Chamber of Commerce during the 2010 legislative session. He opposed the
Minnesota bills to protect credit under the Human Rights Act. “I have heard the argument that
women and minorities may disproportionately have credit issues because they’re targeted by
predatory lenders, but I think the burden is on the advocates to demonstrate that these things
are actually happening,” he argues. “What I don’t want to see happen is putting stuff into law
because of something that has happened only once or twice.”

Furthermore, says Estenson, the use of credit history by employers in Minnesota is not as
widespread as some have suggested. “We actually surveyed our membership, and found out
that very few of our members do it.” He also doubts the claim that employers are increasingly
using credit to screen applicants at all levels. “It costs money to run a credit check,” he points
out. “I don’t see why employers, to hire someone in a custodial position or whatever, would pay
the 50 bucks to have their credit pulled.”

In most cases, an employer who requests a credit report is not likely to do so unless the
employer has already interviewed the candidate and is about ready to make a job offer, or
perhaps, a conditional job offer is already on the table, he maintains. If a credit report turns up
negative information at that stage of the hiring process, the employee will probably have the
opportunity to offer an explanation of any past credit problems, Estenson believes. “If you like
everything about this person to the point where you’re willing to offer them a job, contingent on
their credit score, you’re probably invested enough to take the time to listen to a reasonable
explanation,” Estenson says. “I think 99 percent of the time common sense prevails and the
employer will say ‘oh, okay, I understand.’”

Consumer advocates like Ron Elwood doubt that employers are likely to be so understanding.
“There is always an opportunity to explain things,” says Elwood, staff attorney for the Legal
Services Advocacy Project, which provides legal aid for low-income Minnesotans (see
interview). “But once you’ve got the Scarlet Letter, the explanation may not matter anymore.”


Credit and character
The stigma that comes with a poor credit score — what Elwood calls “the Scarlet Letter” — is a
barrier that he and other advocates believe has no basis as an indicator of an employee’s
character, or as a predictor of job performance.


                                                 7
“I think it’s 60 percent of all bankruptcies are based on medical expenses, and in something like
80 percent of those cases, the people actually had medical insurance,” says Nicholas Slade, a
partner in the law firm of Barry & Slade, LLC, which has sued abusive debt collectors. “So the
fact that they or a family member may have had severe medical problems, and incurred an
enormous amount of debt, has no reflection on the ability of the person to do the job. It speaks
to a completely different set of circumstances which were well beyond their control.”

There is no indication that employees with lower credit scores have poorer job performance, or
are more likely to commit a crime — another concern of employers, according to Klein. In
testimony before Congress on the Equal Employment for All Act, Klein cited a 2003
psychological study that examined the credit reports of nearly 200 current and former
employees in the financial service areas of six companies. The study found that credit history
was not necessarily a good predictor of job performance or turnover, Klein noted.


Credit history is relevant, employers say
But an applicant’s credit history is relevant, at least for many jobs, those who oppose efforts to
restrict use of this information say. “There are certain types of jobs where our members feel very
strongly that a person’s credit background is important to look into prior to hiring,” says
Estenson. “There are a lot of jobs where a person’s financial background is very important, in a
case where a person might be handling private financial information, or where financial
malfeasance is a possibility.”

While the proposed Equal Employment for All Act would prohibit the use of consumer credit
checks against prospective and current employees for most jobs, it would make exceptions for
jobs that require national security or FDIC (Federal Deposit Insurance Corporation) clearance;
for jobs with state or local government agencies that require the use of a credit report;
supervisory, managerial, professional or executive positions at a financial institution; where
otherwise required by law.

The exceptions allowed by the Act appear to concede that credit history is relevant in cases
where an individual would manage sensitive financial or security information, according to
Colleen Parker Denston, who spoke at hearings on the bill on behalf of the Society for Human
Resource Management, which opposed the legislation. In addition, there are positions in
“myriad industries” where ensuring employee integrity is in the public interest, she argues.

One reason employers should be able to consider an applicant’s credit score, along with other
information that might turn up in a background check, is that these days former employers are
often reluctant to provide an accurate assessment of an employee’s work history, strengths, and
weaknesses, Denston testified. To avoid potential defamation lawsuits, many employers will
provide only the minimum in a reference check — perhaps the former employee’s job title and
dates of employment — so employers must turn to third-party screeners and other means to
accurately assess a job candidate.

As financial pressures on households increase, so does employee theft, Denston argues. A
National Retail Security Survey estimates that the U.S. retail industry lost about $14.4 billion in
2009 due to various forms of employee thievery. “These data show why employers are using
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Minnesota Department of Human Rights



every type of screening method they can to avoid making poor hiring decisions,” according to
Denston.


But how accurate is the data?
Those who support the federal Equal Employment for All Act and efforts to pass similar
legislation at the state level argue that not only is a credit report irrelevant in evaluating a job
applicant, there’s a good chance it is not even accurate. “There are a whole host of problems in
the credit reporting industry,” says Elwood. “The system is broken.”

In his testimony in hearings on the Equal Employment for All Act, Chi Chi Wu cited an on-line
survey by Zogby Interactive. The survey found that 37 percent of consumers who ordered their
credit report discovered an error, and 50 percent of those were not easily able to correct the
error (Zogby Interactive, Most Americans Fear Identity Theft, Zogby’s American Consumer, April
2007). Wu notes that the industry’s own trade group, the Consumer Data Industry Association
(CDIA) has admitted that, out of 57.4 million consumers who ordered their own credit reports
back in 2003, almost 22 percent filed a dispute that resulted in an investigation.

Schaubach says she found out firsthand, some years ago, how difficult it can be to correct
damaging information on a credit report that is inaccurate. “I had my purse stolen, and
somebody started using my checks — even though my checking account was closed — a year
afterward. So I started getting these collection calls, and I had to deal with the credit
companies.” It was, says Schaubach, the most frustrating experience of her life. “You have to
contact all three credit bureau, and getting a live person is next to impossible. You have to do
dispute letters, and then you just kind of sit around and wait. So in the meantime, if I’d been
looking for another job and somebody had run my credit report, they would have said, ‘well look,
her credit’s awful.’ Nine times out of 10, they’re not going to ask you why your credit is like that.
They can just say, ‘we don’t want you.’”


The Fair Credit Reporting Act
Some who oppose further restriction on employers’ use of credit history argue that existing law
— the federal Fair Credit Reporting Act (FCRA) — already places significant restrictions on how
and when an employer can inquire about a potential employee’s credit. Under the Act, an
employer must obtain the applicant’s written authorization before the background check is
conducted.

If the employer uses information from a credit report for an “adverse action” — such as denying
a job applicant, rescinding a job offer, or denying a promotion — the employer must provide the
applicant with a “pre-adverse action disclosure” before such action is taken. This includes a
copy of the credit report on which the decision was based, an explanation of the consumer’s
rights under the FCRA.



                                                  9
Then, after the job applicant is rejected or other adverse action is taken, the individual must be
given another notice, which includes — among other things — the name, address, and phone
number of the employment screening company, and a notice that the individual has the right to
dispute the accuracy or completeness of any of the information in the report. (There are
additional, more specific requirements as well — a complete copy of the The Fair Credit
Reporting Act is available at http://www.ftc.gov/os/statutes/031224fcra.pdf).

But critics say these protections aren’t enough, and cite significant loopholes in the Act. If the
employer conducts a background check itself rather than hiring a third-party screening
company, it does not have to provide the notice that would otherwise be required. And if the
employer tells the rejected job seeker that its background investigation was not a factor in its
hiring decision, but other candidates were simply more qualified, the applicant would not be
entitled to a copy of the background check to see what negative and possibly inaccurate
information it contained.


Final arguments
Some who say we must curb employers’ use of job applicant’s credit scores argue that one’s
credit history should be a protected characteristic under antidiscrimination laws for the same
reasons that certain other characteristics such as religion or marital status are protected. They
aren’t relevant to job performance, and moreover, they are personal matters that are none of an
employer’s business.

Last session’s bill to protect credit history under the Minnesota Human Rights Act was
sponsored in the house by Rep. Phillip Sterner. He has heard the argument before that a job
applicant who is financially responsible in his personal life is likely to be a dependable
employee, and doesn’t buy it. “You could use that argument for almost any of the other types of
discrimination you do. You could say, I want to hire someone of a certain religion, because I
know that person goes to church every Sunday, so they’re going to be more reliable than
somebody who doesn’t go to church,” Sterner says.

A credit score should be off limits to an employer for the same reason an employer is not
allowed to ask about marital status, says Nicholas Slade. “You can think circumstances where
somebody has been married and divorced four times. That might certainly point out some
questionable personal skills. But you can’t ask somebody about their marital status, for the
exact same reason you should not be able to ask about credit history. It’s not relevant to the
ability to do the job.”

That assertion will remain in dispute, with many arguing that credit history is relevant — to at
least some jobs. Whether the value of information gained through credit checks and an
employer’s alleged need to obtain it outweighs the potential consequences for individuals
saddled with poor credit is not likely to be decided in Congress this year. But the EEOC has
signaled a new determination to challenge employers’ use of credit information as discriminatory
in its lawsuit against Kaplan — this is only the third time that the EEOC has sued a company for
misusing credit data. The issues raised as the EEOC moves ahead with the suit, and Kaplan
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Minnesota Department of Human Rights



defends its practice as a matter of business necessity, will at least be instructive, and could
change employer practices for years to come.


What They Say

Adam Klein, Partner of Outten & Golden LLP and the chair of the firm’s class action
practice group in testimony on the Equal Employment for All Act for the Lawyers’
Committee for Civil Rights Under Law (LCCRUL)

“Most employers undertaking credit checks are not likely intending to screen out members of
racial minorities, but that is the clear effect of the practice. Letting financial status dictate
employment prospects serves to compound pre-existing trends of financial inequality among the
races.”


Chi Chi Wu, Staff attorney for National Consumer Law Centerin testimony on the Equal
Employment for All Act

“There is no question that African American and Latino applicants fare worse than white
applicants when credit histories are considered for job applications. For one thing, these groups
are already disproportionately affected by predatory credit practices, such as the marketing of
subprime mortgages and overpriced auto loans targeted at these populations.”


Colleen Parker Denston, Government Affairs Director, Maryland State Council of the
Society for Human Resource Management (SHRM) in testimony on the Equal
Employment for All Act on behalf of SHRM

“There is a compelling public interest in enabling our nation’s employers to assess the skills,
abilities, work habits, and integrity of potential hires... the ability to obtain reliable and accurate
job performance information about prospective employees has a direct impact on critical
business concerns such as quality, workplace safety and customer satisfaction.”

“At a time when financial pressures on households are increasing, employee theft is on the
rise... The National Retail Security Survey estimates that the U.S. retail industry lost about $14.4
billion in 2009 due to employee theft. These data show why employers are using every type of
screening method they can to avoid making poor hiring decisions.”


Jennifer Schaubach, Legislative Director, Minnesota AFL-CIO in an interview on bills
introduced in Minnesota’s 2010 legislative session that would have added credit history
as a protected class to the state Human Rights Act.




                                                   11
“They (the credit bureaus) have no accountability whatsoever to anybody. And so a lot of the
time, you have three different major recording companies, and you pull up all three of your credit
reports, and nine times out of 10 there is something wrong on each one of them, and they never
match.”


Nicholas P. Slade, Partner, Barry & Slade, LLC in an interview explaining his support for
restricting employer access to credit history in the hiring process.

“I think it’s 60 percent of all bankruptcies are based on medical expenses, and in something like
80 percent of those cases, the people actually had medical insurance. So the fact that they or a
family member may have had severe medical problems which put somebody into bankruptcy –
or maybe they didn’t file bankruptcy, but they incurred an enormous amount of debt – that has
no reflection on the ability of the person to do the job. It speaks to a completely different set of
circumstances which were well beyond their control.”



Two Views: On the use of credit screening in hiring
Darryl Dahlheimer believes employers have a legitimate business reason to use credit score
information in hiring.

Ron Elwood believes that with few exceptions, employers should not be allowed to consider a
job applicant's credit history.


Darryl Dahlheimer
Program Director for the Lutheran Social Service Financial Counseling Service

At Lutheran Social Service, Dahlheimer supervises a program that provides financial education
and helps those with debt problems improve their credit. In addition, he has directly counseled
more than 3,000 families in the metro area.


Question: In your view, would it be a good idea to add credit history to Minnesota’s
anti-discrimination laws, which would prevent or limit the ability of an employer to use
credit history as part of a hiring decision?

In a short answer, I don’t think it’s a good protection to offer. I think there is a good, legitimate
business reason for employers to consider an applicant’s credit score. But I’m sympathetic to
why people would be concerned, because in the absence of any real education about credit
reports and scores, how people experience a credit report is like invisible bees stinging — they
just don’t know what’s going on, they just know bad consequences. I think when you don’t
understand what goes into your score, it can feel like an unfair system. I get that. But when you
understand what goes into your score, it looks fairer — it looks like there may be a business
case for consideration of that by employers, landlords and car insurers, etc.
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Minnesota Department of Human Rights



Question: What would be the business reason why an employer would want to know
about your credit score?

I don’t think one should use a credit score as a litmus test — like 650 and above gets hired, 650
and below does not — that seems silly. I would never encourage the use of a credit score or
credit report as a global measure of responsibility — good people can have bad credit. But to
the extent that a credit report history of whether you’ve paid well and on time or not, and met
your obligations financially, to the extent that that’s a snapshot or one measure of responsibility,
then it does have some job implications about how financially responsible you are.

The stronger case is that it’s a risk factor for employers these days to understand financial
pressures that are on their employees, for two reasons. One is the actual risk of theft or
embezzlement, and maybe more important is the risk of identity theft. So as a hiring manager, I
want to know if there is some risk factor here that’s elevated for the kinds of behaviors around
financial pressure. If an employer sees there is a bankruptcy, I think it’s very relevant to know if
they’re going through a Chapter 13 bankruptcy, where they’re making distressed payments to
the court every month. That’s a potential factor in deciding whether to hire that person or not —
in the same way as if they have a past crime, or if they have references that don’t indicate they
left their last job under good circumstances. It’s all part of a big picture.


Question: Is there any data to suggest that people with credit problems are more likely to
embezzle or commit a crime, or be a risk for an employer?

I don’t know if there is any data, offhand. I think it just makes common sense to know that if
somebody is being hounded by creditors and is feeling these kind of pressures with collection
calls and judgments, and the employer is going to receive garnishments on the wages — that at
some point that’s at minimum a distraction, and probably puts them at risk for potentially more
risky behaviors with the information that they handle.

Certainly every small business thinks about embezzlement — if you have a cashier or someone
dealing with cash or receipts or receivables, that’s a risk factor. But what’s interesting is, it used
to be only financial businesses that would make the case — bank tellers would get a screening
or a credit score. But now, so many people at an administrative, secretarial or customer service
level — they kind of all have access to financial information like credit cards and account
numbers and things. So the risk broadens in our information society.


Question: Is it your sense, then, that use of credit history information by Minnesota
employers is widespread at all levels, and increasing?

I’m not in a position to know how widespread it is. But my impression is that many employers
who previously would not have done it, now are including that as part of their profile of looking at



                                                  13
people — in the same way that they would include reference checks, or criminal background
checks.


Question: If a job application form asks an applicant to sign a waiver allowing the
employer to check their credit, would you advise the job applicant to sign it?

I would advise them to sign it, because otherwise it’s just a hassle for the hiring manager to
have to chase people. So I wouldn’t give the hiring manager any reason not to give me an
interview. So yes, I’d recommend signing it. But the practical part is, it costs employers money
to get credit checks like that. My impression is, 99 percent of employers would never pull that
until after an interview process. So if we get 400 applications, we’re not going to pay to pull 400
credit reports. Realistically, a credit score is not going to be pulled or obtained before someone
has invested in you with at least an interview.

One of the things we do when people have impaired credit is we coach people on how to talk to
an employer proactively. So in the interview they say, honestly, “I want you to know that I’m
going to be a great candidate for you. If you pull my credit report you’re going to see some of
these things, but this is the context for that, and just know it’s not going to come up, because I
am on top of it.” So an employer might have a legitimate concern, but it doesn’t have to be like a
poison pill or a scarlet letter or something like that. It’s something to explain — the same as
people with a minor drug charge 10 years ago, or a minor traffic thing, have to be prepared to
explain those, because they will likely be discovered.


Question: So if a job applicant can reasonably explain why they got into trouble with
credit, an employer is likely to be sympathetic?

I can tell you as someone who hires and has hired several dozen people, we want to know the
context. And if an employee proactively brings up something, as a hiring manager it makes you
relieved that this is the kind of person who is going to disclose problems, versus hide them.


Question: What about the argument that use of credit information might unfairly penalize
certain groups, such as minorities who might be disproportionately targeted for
predatory lending?

There are two issues here. One is, the use of credit scoring, which is a set of algorithms and
mechanical formulas that assigns points for or against you based on the positives and negatives
— that’s 1,000 times better than the way things used to be, which was manual underwriting.
That basically meant that old white guys, maybe like me, would sit in a room, randomly deciding
whether someone was creditworthy or responsible. So this idea of a score, which is fairly
transparent and where there is easy education available, that seems much more fair than the
old system.

Now, what’s also true is, many, many groups feel penalized about this because the
circumstances of their lives have led to poor scores and poor scoring. An example of that might
be some communities that have had bad experiences with credit card companies — in the
The Rights Stuff                                                            Winter 2011

Minnesota Department of Human Rights



absence of financial education, historically some communities have been hit harder than others.
But I think the answer isn’t to not have standards for credit, but to universally provide the basic
credit education to make it an equal thing.


Question: Are you concerned about the possibility that an employer could use a credit
score as a pretext to not hire someone, when the real reason might be something, and
possibly discriminatory and illegal?

I would hope that people would be able to enforce the Equal Credit Opportunity Act and the fair
hiring laws. And that if credit was the reason given, but it was a stand-in for race or gender
discrimination or age discrimination, I hope that would be reported to the Department of Human
Rights. I hate the idea of thinking that credit could be a stand-in. But I think there are existing
laws that can address that potential, while still allowing employers to have legitimate information
that does have some relevance or business case.


Question: What about the argument that credit history might be a risk factor, but there
could be other stresses in an employee’s life — divorce, marital difficulties or mental
health concerns — that would generally be off-limits for an employer. Why should an
employer be able to know that you’re struggling with your credit, but not be able to know
that you’re fighting with your spouse, or have other issues causing stress?

You ask a great question. Does an employer have a right to know all relevant information a new
applicant, or where would you draw the line — on family problems, parenting problems, mental
health issues, treatment for alcohol and drug problems, things like that. I think there is what we
recognize in civil society as a balance between individual rights and other people’s rights — it’s
always about finding a balance. I think there are important reasons why other things are out of
bounds for employers to ask about — to protect against gender discrimination, to protect
against disability discrimination. Because those are important things that we recognize need to
be protected. I think that that’s a different thing than one’s public credit history.


Question: What about the person who, for whatever reason, chooses not to use credit,
and as a result, they don’t have a good credit score — or any credit score? They’ve been
totally responsible, yet when they apply for a job, the fact that they’ve always bought
only what they can afford, and paid in cash, may be held against them. Is that fair?

That’s potentially tricky because, for example, in some communities there are cultural reasons
why use of credit is discouraged. I think about the Amish, and about some parts of the Somali
and Islamic community. And sometimes, individuals have just personal beliefs about not
wanting to use credit. So I think that poses a challenge. Should someone be penalized because
they opt out of the system? On the other hand, should they be rewarded for opting out of the
system? I’m not sure about that.


                                                15
It’s kind of like choosing to not have a driver’s license: There is no doubt that having a driver’s
license and a clean driving record helps me as a job applicant, even if I don’t have a job with
driving duties. It’s kind of a stand-in for responsibility. Having a checking or savings account,
being banked somewhere — I’m not sure whether it should count or not. I just know that it’s a
measure — it’s a standard of what mainstream financial America looks for. And I don’t think it’s
a hyper unreasonable one.


To obtain a copy of your credit report

Dahlheimer urges individuals to obtain a copy of their credit reports, but points out that some
web sites that appear to offer credit reports for free require enrollment in plans with additional
fees. He recommends one site that is free: AnnualCreditReport.com
(https://www.annualcreditreport.com) allows consumers to obtain a no-strings-attached copy of
their credit report, once every 12 month, from each of the nationwide consumer credit reporting
companies – Equifax, Experian and TransUnion.
The Rights Stuff                                                             Winter 2011

Minnesota Department of Human Rights




Ron Elwood
Staff Attorney, Legal Services Advocacy Project at Mid-Minnesota Legal Assistance

As staff attorney for the Legal Services Advocacy Project, Elwood advocates on behalf of Legal
Aid clients for policies that improve the lives of low-income consumers. He argues that with few
exceptions, employers should not be allowed to consider a job applicant’s credit history.


Question: A lot of people are having credit problems these days, and it’s been suggested
that it might be a good idea to have some legislation that would limit the ability of an
employer to use someone’s credit history when they’re making a hiring decision. What’s
your position?

I think generally that’s a really good idea, except perhaps where the issue of credit is
inextricably involved with a job’s day-to-day activities, such as, for example, a bank teller or
something like that where there is some relation. If you can prove that there is a close
relationship between credit history and of the nature of the job, there may be some merit there.
But I think for the most part, there really should be little relationship between a person’s credit
history and their ability to perform a typical job.


Question: Is it your sense that the use of credit history is widespread for a lot of jobs that
don’t have anything to do with credit or financial ability?

It seems that the use of credit history is becoming more widespread for a whole bunch of things,
including, for example, insurance — the actual offering of insurance, or the rates for insurance,
depending on your credit score. But there is really not a lot of connection between whether or
not somebody is paying their bills on time. Also there are a whole host of problems in the credit
reporting industry. The Federal Trade Commission recently issued a report explaining how the
system is broken — that’s the word they use — broken. The wrong people are being sued,
people are being sued for the wrong amounts, people are being sued after the statute of
limitations has expired. Because there are all sorts of flaws and efficiencies in the system,
somebody’s alleged credit history may not even be accurate. So to base a job offer, or an
evaluation about a prospective employee, on erroneous information or potentially erroneous
information, or where there is a strong likelihood that the information is erroneous, seems to me
completely wrong and unfair.

And second of all, even if the information is accurate, there are a whole host of reasons why
people are late in paying their bills — medical problems, all sorts of issues. So if you are not
paying your bills on time, or you’ve defaulted on something at some point in the past, I just am
not sure where the relationship is to working at any job.

                                                 17
Question: But what would you say to the employer who says, there is a character issue
here — that someone who pays their bills on time and is financially responsible, is more
likely to be a responsible employee?

I think that is an assumption that has no basis in fact. It’s an assumption that is significantly
flawed, because there are a myriad of reasons as to why folks don’t pay. Explain to me how
somebody who has been a homeowner for 25 years, and got themselves hoodwinked by a
subprime lender, and all of the sudden is in foreclosure, is an irresponsible citizen or an
irresponsible worker. You cannot paint with one brush every single person who is late or hasn’t
paid a bill and characterize that person as irresponsible.


Question: What would you say to an employer who said, “That might be true, Ron. But at
least some people who get themselves into debt are irresponsible – people should pay
their bills, and if they don’t, that tells me something I want to know as an employer.”

My response to that would be: show me one empirical, credible, evidentiary study that makes a
link between job performance, responsibility, personal responsibility, all those characteristics,
and bill payment history. I don’t believe there is one, and until there is such a study that’s
credible and is based on sound science, then this myth or perception, without any evidentiary
basis, should be completely discredited.


Question: You mentioned that it might make some sense to allow employers to consider
credit history for jobs that relate to credit or financial management. What about the
argument that these days a lot of employees have access to financial data — even the
restaurant waiter who swipes your credit card — and that as a result, employers have a
lot to worry about in terms of financial risk?

My answer to that is: If you’ve been convicted of a crime — if you’ve committed fraud or
embezzlement or theft — and you’re dealing with people’s finances, that’s relevant. Criminal
history is relevant, especially for jobs in the financial area. But credit history — I’m not sure what
connection that would be. It’s not relevant.


Question: You mentioned that credit scores can be inaccurate. But doesn’t someone who
has bad credit because of inaccurate data have the opportunity to get that information
corrected? And if they are applying for a job, wouldn’t they typically have an opportunity
to explain things?

There is always an opportunity to explain, but once you’ve got the “Scarlet letter,” the
explanation may not matter anymore. It’s a very similar situation to the eviction histories that
people carry around, when they're trying to get housing. To get an eviction on your record, there
is no necessity to be found to have actually not paid the rent — it’s simply a filing in court. And
similarly here, you’ve got a filing in court, or a summons and complaint which has never even
been adjudicated, that there may have been a problem. So it’s essentially suggesting somebody
is guilty before they are proven so.
The Rights Stuff                                                           Winter 2011

Minnesota Department of Human Rights



And on top of that, even if you attempt to correct your credit history and get accurate
information, the ability to do that from a consumer’s standpoint — the success rate of correcting
incorrect information — is not sterling at the credit reporting agencies. So the system itself is
dramatically flawed. To use a dramatically flawed system to evaluate somebody’s performance
seems to me to be unfair. And again, whether or not you can explain something — that does not
address the fundamental question as to whether or not credit history is relevant in any way to
the performance of the job in the first place.


Question: Some would argue that one way the credit system is flawed, is that it can
discriminate against certain groups, such as people who might be targeted for predatory
lending practices. What’s your take on that?

I think that is a huge concern. There is definitely some disparate impact in that arena. And
moreover, here is the anomaly of the system: somebody has a terrible credit record if they’ve
paid every bill they’ve ever had in cash. So if they’ve actually never used credit, but they’ve
never owed anybody a dime, and they’ve never been behind on any payments, in the eyes of
the credit reporting world they’re a bad credit risk. They’re deemed to be credit risky when in
fact they’re the most creditworthy. Not only does the system not lend itself to this kind of
situation, it’s just fundamentally unfair and irrelevant.


Question: What else should people know about the system and about what we might
need to do to fix it or change it?

Credit is not as easy to get today, and that’s probably a good thing because the problems of
easy credit I think were among the main causes of the downfall of the economy. So I think the
system will self-correct on one hand, and on the second front, we have now an entity, an
oversight entity, that can begin to address some of these problems on a national scale.

I’m frequently confronted with the proposition that, we need to focus on personal responsibility.
Of course, that’s true — nobody would argue with that proposition. We all need to be
responsible as consumers. On the other hand, things happen to folks. Divorce and medical bills
are the two primary reasons people get into debt, and now we’ve got a third: we are in a terrible
economic crisis where unemployment is as high as it’s been in quite some time. And it’s very
difficult to make ends meet when you don’t have a job and you find yourself in a situation that
you never thought you’d be in in your life.

But at the same time, it’s not only individual consumers who have to be responsible. There is a
corporate responsibility. And I think one of the lessons we’ve learned from the Wall Street
debacle and the economic mess we’re in, is that there was some irresponsible behavior not on
the part of individuals, but on the part of huge, huge corporations and conglomerates. And my
argument would be, we all need to be accountable, not just individual consumers. I think
financial institutions and all of us have a responsibility.


                                               19
On Video from the Department of Human Rights:

Your Credit History – What Should Employers Know?
Does a credit score say something about a job applicant's character, or are most people with
bad credit in that situation through no fault of their own? This half-hour video includes interviews
with Darryl Dahlheimer and Ron Elwood, featured in this issue of The Rights Stuff. Available on
the department web site (http://www.humanrights.state.mn.us/education/video/credit.html) and
YouTube (http://www.youtube.com/mnhumanrights#p/u/14/wByhBqnBq44).



How Four States Protect Credit History
In 2010, Oregon and Illinois joined Washington and Hawaii as the only states that have
significantly limited the use of credit information in employment – even as comparable
legislation was introduced but failed in 18 other states including Minnesota. Here are some of
the key provisions of laws in those four states.


Oregon
It is unlawful for an employer to refuse to hire, discharge, demote, suspend, retaliate or
otherwise discriminate against an applicant or an employee with regard to promotion,
compensation or the terms, conditions or privileges of employment based on information in the
credit history of the applicant or employee. An employer may not obtain or use for employment
purposes information contained in the credit history of an applicant for employment or an
employee.

Legislation enacted: 2010


Exemptions include:
    Positions at federally insured banks or credit unions;

    Positions for which employers are required by state or federal law to use individual credit
      history for employment purposes;

    Positions for which the credit history of an applicant or employee is substantially
      job-related and the employer’s reasons for the use of such information are disclosed to
      the employee or prospective employee in writing;

    A public safety officer who is a member of a law enforcement unit, who is employed as a
      peace officer commissioned by a city, port, school district, mass transit district, county,
      Indian reservation, the Criminal Justice
The Rights Stuff                                                            Winter 2011

Minnesota Department of Human Rights



Division of the Department of Justice, the Oregon State Lottery Commission or the Governor
and who is responsible for enforcing the criminal laws of the state of Oregon or laws or
ordinances related to airport security.

http://www.leg.state.or.us/10ss1/measures/sb1000.dir/sb1045.en.html


Illinois
An employer shall not refuse to hire or recruit, discharge, or otherwise discriminate against an
individual with respect to employment, compensation, or a term, condition, or privilege of
employment because of the individual’s credit history or credit report. An employer may not
inquire about an applicant’s or employee’s credit history, or order or obtain an applicant’s or
employee’s credit report from a consumer reporting agency.

Legislation enacted: 2010


Exemptions include:
Jobs for which a satisfactory credit history is a bona fide occupational qualification (BFOQ). A
satisfactory credit history is not a bona fide occupational requirement unless at least one of the
following circumstances is present:

     The employee’s duties include custody of, or unsupervised access to, cash or
       marketable assets valued at $2,500 or more.

     The job is a managerial position which involves “setting the direction or control of the
       business.”

     The job involve access to personal or confidential information, financial information,
       trade secrets, or State or national security information.

     The duties of the position include signatory power over business assets of $100 or more
       per transaction.

     An employee’s or applicant’s credit history is otherwise required by or exempt under
       federal or State law.

     The position meets criteria in administrative rules, if any, that the U.S. Department of
       Labor or the Illinois Department of Labor has promulgated to establish the
       circumstances in which a credit history is a bona fide occupational qualification.

http://www.ilga.gov/legislation/publicacts/96/PDF/096-1426.pdf




                                                21
Hawaii
Establishes employer’s use of individual’s credit history in hiring and termination decisions as an
unlawful discriminatory practice.

Legislation enacted: 2009


Exemptions include:
    Jobs in which an individual’s credit information directly relates to a bona fide
      occupational qualification (BFOQ);

    Jobs in which employers are expressly permitted to inquire into credit history under a
      state or federal law;

    Managerial and supervisory employees;

    Employees of financial institutions in which deposits are insured by a federal agency.

http://www.capitol.hawaii.gov/session2009/Bills/HB31_CD1_.HTM


Washington
A employer may not obtain a credit report for employment purposes unless the information is
either substantially job related and the employer’s reasons for the use of such information are
disclosed to the consumer in writing, or the information is required by law.

Legislation enacted: 2007

http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bills/Session%20Law%202007/5827-S.
SL.pdf



For Further Reading
EEOC Files Nationwide Hiring Discrimination Lawsuit Against Kaplan Higher Education Corp.
http://www.eeoc.gov/eeoc/newsroom/release/12-21-10a.cfm

Further Investigation of Credit History As a Predictor of Employee Turnover
American Psychological Society (Atlanta 2003)
Dr. Jerry K. Palmer & Dr. Laura L. Koppes,
http://www.house.mi.gov/SessionDocs/2009-2010/Testimony/Committee15-3-17-2010-7.pdf

Credit Reports Remain Crucial to Hiring Process
Society for Human Resource Management
http://www.shrm.org/about/news/Pages/CrucialToHiring.aspx

Text of H.R. 321: Equal Employment for All Act
The Rights Stuff                                                           Winter 2011

Minnesota Department of Human Rights



To amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against
prospective and current employees
http://www.govtrack.us/congress/billtext.xpd?bill=h112-321

Another Hurdle for the Jobless: Credit Inquiries
Jonathan D. Glater, New York Times, August 6, 2009
http://www.nytimes.com/2009/08/07/business/07credit.html

Testimony of Adam Klein
Partner, Outten & Golden LLP, at the Legislative Hearing on H.R. 3149 The Equal Employment
for All Act
http://financialservices.house.gov/Media/file/hearings/111/Klein092310.pdf

Testimony of Chi Chi Wu
Staff attorney, National Consumer Law Center, at the Legislative Hearing on H.R. 3149 The
Equal Employment for All Act
http://financialservices.house.gov/Media/file/hearings/111/Wu092310.pdf

Statement of Colleen Parker Denston
on behalf of the Society for Human Resource Management, presented to the U.S. House
Financial Services Subcommittee on Financial Institutions and Consumer Credit
http://financialservices.house.gov/Media/file/hearings/111/Denston092310.pdf

What’s in your FICO® score
http://www.myfico.com/CreditEducation/WhatsInYourScore.aspx

Credit Reports - Know Your Rights
http://www.myfico.com/CreditEducation/Rights/CreditReportRights.aspx

A Summary of Your Rights Under the Fair Credit Reporting Act
http://www.yale.edu/hronline/careers/screening/documents/FairCreditReportingAct.pdf

Cohen Introduces Bill to Prevent Employers from Using Credit Checks to Hire or Fire
Employees
http://cohen.house.gov/index.php?option=com_content&task=view&id=1401&Itemid=102

Credit Scoring and Disparate Impact
Elaine Fortowsky & Michael LaCour-Little
http://fic.wharton.upenn.edu/fic/lacourpaper.pdf

Use of Credit Information in Employment 2010 Legislation
A state by state summary of legislation introduced during the 2010 legislative session relating to
the use of credit information in employment.
http://www.ncsl.org/?tabid=19825

The Over-Consumption Myth and Other Tales of Economics, Law and Morality
Elizabeth Warren
http://www.yale.edu/law/leo/052005/papers/Warren.pdf



                                                23
Equal Credit Opportunity: Understanding Your Rights Under the Law
A summary of consumer rights under the federal Equal Credit Opportunity Act (ECOA), which
prohibits credit discrimination on the basis of race, color, religion, national origin, sex, marital
status, age, or public assistance.
http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre15.shtm
The Rights Stuff                                                           Winter 2011

Minnesota Department of Human Rights




By Rights…
The Commissioner answers your human rights questions

To submit a question to this column, visit the Department’s web site where the column regularly
appears, or send your question to: The Minnesota Department of Human Rights, 190 East 5th
Street, Suite 700, St. Paul, MN 55101. Attn: By Rights.

We will not publish your name or the names of individuals or companies you identify, but you
must include your name and phone number. If you have a human rights question but would
prefer that your question not be published, call the Department at 651-296-5663 or
1-800-657-3704 (toll free) and ask for Intake.


Can employer post employee photos in public waiting room?
To the Commissioner:

My sister works as a dental assistant at a community clinic in Minneapolis, which addresses the
mental, medical and dental health needs of its clients. Recently her manager told the dental
assistants that they would be having head-shots taken, and these photos would be placed in the
public waiting room. I have to mention that this clinic is in a very rough part of town, and the
clientele it serves includes people with mental health issues, drug and alcoholic issues,
including convicted felons. My question is: Does an employer have the right to take employees’
photos and place them in the business’ public area without the consent or permission of the
employees? The dental assistants have great concerns about protecting their identity.

The Commissioner says:

There is no provision in the Human Rights Act that would prevent an employer from posting
photos of employees in its waiting room; the Act does not speak to employee privacy, safety or
other employment issues that do not involve discrimination. It is possible that if the posting of
employee photos resulted in discriminatory behavior — if, for example, employees were to
experience sexual or other harassment from clients or others because such photos had been
posted, and the employer refused to take action to end the harassment — the matter could fall
within our jurisdiction. It could also be of concern to our department if all of those being
photographed are female, and their gender or attributes related to their gender are part of the
reason their images are being publicly displayed — particularly if there is a comparable,
male-dominated group of employees who are not having their pictures posted. But unless
discrimination is involved, your question would appear to be outside of our jurisdiction or



                                                25
expertise. You may wish to contact a private attorney. The Department of Human Rights cannot
offer legal advice.
The Rights Stuff                                                             Winter 2011

Minnesota Department of Human Rights




Perfume called a hazard to employee’s health
To the Commissioner:

I am trying to determine my rights as an employee of a company where strong perfume scents
are negatively affecting my health and posing a significant health risk — I have a medical
condition related to my lungs. What can be done to make this a healthy environment?

The Commissioner says:

If your medical condition rises to the level of a disability, your employer would need to attempt to
make a reasonable accommodation to your condition if it has 15 or more employees. A physical
impairment rises to the level of protected disability if it materially interferes with a major life
activity, which would include breathing and lung function. Your employer would be within its
rights to request medical documentation of the extent of your impairment and need for
accommodation, such as the creation of a fragrance-free work environment. If your difficulty is
not a disability, but the strong perfume scents are, nonetheless, adversely affecting your health,
you would not have a case under the Minnesota Human Rights Act, but you might wish to talk
with a private attorney about other legal options.


Can a supervisor ask about your disability?
To the Commissioner:

What medical questions can be asked by a shift supervisor when you call in sick? I am currently
seen on a routine basis at the VA medical center in Minneapolis for a disability. My company’s
human resources department knows about my disability, but I feel I should not have to provide
this information to a shift supervisor. What are my rights?

The Commissioner says:

An employee with a disability is not required to reveal the details of the disability to individual
supervisors. If the absences are related to a specific disability, rather than occasional, unrelated
illnesses, the shift supervisor only needs to know that the absences are related to a condition
about which human resources is aware. If pressed by the supervisor, referring him or her to HR
should be sufficient, although you may want to inform HR that you are being unnecessarily
pressed for details.

Should you suffer any adverse employment action due to following this course, you may want to
contact the Department’s Intake Unit to discuss the details of your situation, as you may have a
claim under the Human Rights Act and the federal Americans with Disabilities Act (ADA).


                                                 27
Religious discrimination against high school athlete?
To the Commissioner:

After his freshman year, our son transferred from a large public high school to a small Catholic
high school for religious purposes. According to the Minnesota State High School League
(MSHSL) rules, such a transfer renders him ineligible for varsity athletic competition for one
year. It seems to me that the MSHSL rule unfairly denies our son the benefit of possibly playing
at the varsity level simply because we chose to follow our faith and enroll him in a Catholic
school. Would this matter warrant further investigation as a possible case of religious
discrimination?

The Commissioner says:

If a student were to be denied an educational opportunity because of his or her faith, that denial
could constitute a violation of the state Human Rights Act, which provides that religion is a
protected characteristic in education. We are not familiar with the policy you cite, but as you
have described it, the policy would appear to be neutral on its face. If we presume that a student
who transferred to any other school, religious or secular, would be similarly ineligible, the policy
would appear to be nondiscriminatory. Although the policy may adversely affect your son, it
would in theory have the same affect on another student who changed schools under similar
circumstances for reasons not related to religion.

It is sometimes the case that a policy that is neutral on its face can have a disproportionate
impact on members of a particular protected class, and can be considered discriminatory under
the Act for that reason. For example, if it could be shown that more students transfer from public
schools to Catholic schools than transfer from Catholic schools to public, it is possible that a
policy on such transfers could have an adverse impact on students transferring to Catholic
schools. The Department would not be able to determinate whether discrimination was involved
in any case without knowing all the facts.


Can you ‘seal’ records of a human rights charge?
To the Commissioner:

I filed a complaint with the Department of Human Rights against a former employer that was
dismissed earlier this year. I would like my file and any summaries of the complaint sealed so
that it is not public information. I have been looking for work for the past 18 months and do not
want this information available to prospective employers, as it may influence their decision to
consider me for employment. Please advise.

The Commissioner says:

Although we understand your concern, the Department cannot by law “seal” data that is
classified as public under the Minnesota Human Rights Act. Under the Act, the name and
The Rights Stuff                                                            Winter 2011

Minnesota Department of Human Rights



address of the charging party and the factual basis of the complaint are considered public data
once a case is closed. This is true whether the charge is ultimately dismissed for one reason or
another, or results in a completed investigation and a finding by the Department. The
Department does not, as a policy matter, routinely publish or distribute information about
charges filed or the names of charging parties, except for a small number of cases which are
considered to have educational value and help fulfill the Department’s educational mission. But
if we receive a request for information about a particular closed case, we must by law provide
the data that is classified as public with respect to that case.

If an employer should refuse to hire you because the employer has somehow learned that you
have previously filed a charge with the Department of Human Rights, such a refusal could be
considered reprisal, and illegal under the Human Rights Act. It is a violation of the Act to
retaliate against an individual — including refusing to hire them — because of that individual’s
opposition to discriminatory practices. If you should find yourself in such a situation, you may
wish to contact our Intake Unit to discuss filing a charge of reprisal.


Criminal background check turns up 24-year-old conviction
To the Commissioner:

I recently interviewed for a job and was told that I was hired, pending “passing” a background
check that would go back seven years. I have a felony conviction for possession of a controlled
substance back in 1986, and this conviction turned up in the background check. I was then told I
would not be hired, because of concerns by one of the company’s major clients. I would have
been working at their office, and they wanted to check my entire life. What are my rights? This
conviction is 24 years old.

The Commissioner says:

In a few states and jurisdictions, having a record of an arrest or conviction is a protected
characteristic under human rights laws, and restrictions exist on how employers may use such
information. Minnesota is not one of those states, and the law we enforce — the state Human
Rights Act — does not have such protections. Thus, an employer who chooses to consider a
24-year-old conviction in evaluating a job applicant would not be violating the Act by doing so. (If
an employer were to exclude all job applicants with previous arrests, rather than convictions, it
is possible that such a blanket policy could have a disparate impact within a protected class,
such as race, but that does not appear to be an issue based on the information you have
provided.)

We cannot speak to whether or not you may have other legal remedies outside the scope of the
Act, based upon your belief that you had a conditional job offer, would have met the conditions,
but the conditions were subsequently changed. You may wish to consult with a private attorney.




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Is tenant entitled to a cat accommodation for disability?
To the Commissioner:

I have a tenant with a serious and persistent mental illness who wants to have a cat. Her
psychiatrist has recommended that she have one for emotional support, but our landlord has a
no pet policy. I want to protect my tenant’s rights, but I also understand my landlord’s desire to
protect himself from having to pay for property damage caused by a pet. So I have some
questions:

   1. Does an untrained cat enjoy the same protections under the human rights law as a
      “service animal?”

   2. Does a “psychiatric service animal” have special rights? I cannot find the term in the
      statutes, but I have been told that courts are defining “service animal” quite liberally
      these days.

   3. Can our landlord request a damage deposit for our consumer to have the cat?

   4. Can our landlord require reimbursement for damages the cat may cause?

I very much appreciate your answers.

The Commissioner says:

Making an exception to a no-pet policy by allowing a tenant to have a medically prescribed
companion animal, even a cat, can be considered a reasonable accommodation for purposes of
complying with the Human Rights Act requirement to make reasonable accommodation, absent
undue hardship for the landlord. A damage deposit or reimbursement for damages actually
caused by the animal is reasonable, unless the deposit is so excessive that it effectively
prohibits the tenant from having the animal.


Discrimination because of public assistance?
To the Commissioner:

The manager for my apartment unit has threatened to evict me and my family many times.
Recently I was issued an “infraction” for destruction of property, because of something a prior
tenant in the unit across the hall had let their cat do. I just feel like I’m always under attack from
the property manager, and I know some other tenants who feel the same way. All of us are on
public assistance. Do I have the right to lodge a complaint?

The Commissioner says:

You could potentially file a charge with the Minnesota Department of Human Rights, only if the
treatment to which you object is related to a characteristic that is protected under the Minnesota
Human Rights Act. In housing, one of those protected characteristics is receipt of public
assistance. If you believe that your public assistance status is the reason, or part of the reason,
that you (and perhaps other tenants receiving public assistance) are being threatened with
The Rights Stuff                                                              Winter 2011

Minnesota Department of Human Rights



eviction or cited for infractions, you may wish to contact our intake unit at 651-296-5663 or
1-800-657-3704 to discuss your situation further. However, if the treatment to which you object
is not related to your public assistance status or to another protected characteristic, your
situation would be outside of our jurisdiction. In that case, you may wish to contact a tenant’s
union or a legal aid clinic in your area.




Single mother told she’s abusing sick leave
To the Commissioner:

I am a single mother of three children. In my employment, I earn a certain amount of vacation
and sick time separately. My employer has frequently had discussions with me about my sick
time usage, referring to it as a possible cause for discipline. They know I am a single parent,
and that I try to schedule all of my appointments for late in the afternoon to minimize my time
off. But they equate my use of sick time with abuse, even though I have detailed what all of my
time off is for. They are also requiring me to document my chronic sinus infections, in order to
justify some of my time off. Is it fair for them to ask me to specify why I need sick time? And is it
fair for them to threaten me with discipline because of it? I am emphatically not abusing my sick
time. I am using small portions when necessary to care for myself and my children. Are they
within their rights to hold me in fear like this?

The Commissioner says:

Although no employer is required to offer sick leave, under the Minnesota Parental Leave Act,
an employer who does must allow an employee to use accrued sick leave for the care of a sick
or injured child — provided that the employer has at least 21 employees, and that the employee
requesting the leave works at least 20 hours per week on average. This law is not enforced by
the Minnesota Department of Human Rights, but is under the jurisdiction of the Minnesota
Department of Labor and Industry. You may choose to contact them for more information, or
you may visit their web site at http://www.dli.mn.gov/LS/ParLeave.asp.

There is also a federal Family and Medical Leave Act (FMLA), which provides unpaid leave and
covers employers with 50 or more employees.

We enforce the Minnesota Human Rights Act, which prohibits discrimination in employment
based on certain protected characteristics, including sex, marital status, disability and others,
and covers employers with even one employee. With respect to your specific questions, an
employer may reasonably require an employee to provide medical documentation for absences
due to illness. What an employer cannot do, under the law we enforce, is to treat some
employees and some absences differently than others because of the employee’s sex, marital
status, a disability or another protected characteristic. If you believe that your gender, marital
status or another protected characteristic is the reason (or part of the reason) your employer is


                                                 31
subjecting your absences to increased scrutiny, you may wish to contact our intake unit at
651-296-5663 to discuss your situation further.

If your employer is refusing to allow you to use sick leave for the care of a sick child, or
penalizing you for so doing, and is covered under the Minnesota Parental Leave Act, you may
choose to follow up with the Department of Labor and Industry.

The answers in these columns are not intended as legal advice. The Department of Human
Rights does not make a judgment on any case without carefully examining all the facts.

For more information, please contact Jeff Holman, Communications Director, Minnesota
Department of Human Rights, 651-296-2173, jeff.holman@state.mn.us.



MDHR Community Partners
The Department of Human Rights works collaboratively with community partners committed to
our common vision of a discrimination-free Minnesota.

The League of Minnesota Human Rights Commissions
http://www.hrusa.org/league

The Human Rights Resource Center
http://www.hrusa.org

The Advocates for Human Rights
http://www.mnadvocates.org

Advocating Change Together (ACT)
http://www.selfadvocacy.org/

The Minnesota Department of Human Rights is not responsible for the content of external
websites.



Contact Information
Minnesota Department of Human Rights
190 East 5th Street, Suite 700
Saint Paul, MN 55101

651-296-5663
651-296-1283 (TTY)
800-657-3704 (Toll Free)

Web site: http://www.humanrights.state.mn.us