Comment by Richard Cohen on December 24, 2013 Posted in General Employment Discrimination, “Employment Discrimination Report”, Fox Rothschild LLP - Attorneys at Law.

 

We recently posted about this legislation proposed by Senator Elizabeth Warren that would prohibit inquiries into the credit histories of job applicants.

 

Johann Scheepers, Commissioner at the Commission for Conciliation, Mediation and Arbitration in the Johannesburg Area of South Africa, provided an interesting perspective:

 

“I fail to see the nexus between a ‘bad credit history’ vis-a-vis trustworthiness or reliability as selection criteria used in making appointments. In the current unfavorable economic climate most employees, who could be categorized as from the middle class, struggle to make ends meet. It has been said that many employees ‘are one pay cheque short of bankruptcy.’  If the criterion of ‘bad credit’ is used as a yardstick for employment, employers may find it difficult, if not impossible to fill vacant positions. The said criterion is in substance and nature based on a subjective employment practice such as recruitment decisions based on the exercise of personal judgment or the application of subjective criteria. It therefore constitutes indirect discrimination in employment practice.

 

In terms of South African legislation, an employer has a statutory defence in that if the employer could prove that the discriminatory act is the result of ‘an inherent requirement of the job,’ the act would be fair. This notwithstanding, the Courts and tribunals adopted a narrow construction of the ‘inherent requirement of the job defence,’ and stressed that the defence ought to be construed narrowly, ‘[A]ny legislatively formulated justification of discrimination constitutes, in effect, a limitation on the constitutionally entrenched right to equality and this militates against an expansive reading of the phrase “an inherent requirement of the job.’

 

It would be interesting to know if the US Legislator included a similar ‘escape clause’ in the Act under discussion based on the wording of other US legislation, for example, ‘business necessity’ or ‘bona fide occupational qualification’ or prerequisite for employment?”