School Law Update: Civil Rights and the Measles- the United States Department of Education through the Office for Civil Rights releases a fact sheet offering guidance on how schools can be mindful of civil rights requirements and ensure that students who are medically unable to receive vaccines due to a disability are not discriminated against on the basis of disability

On March 18, 2015, the United States Department of Education through the Office for Civil Rights (“OCR”) released a fact sheet reminding schools to be mindful of civil rights requirements when dealing with and responding to the recent measles threat.  OCR recommends that schools use the Centers for Disease Control and Prevention’s recommendations and resources when considering how to best prevent the spread of measles.  OCR advises that in general, schools can require that students be vaccinated to attend school in order to minimize the risk of exposure to other students.  In the case of an outbreak, schools should defer to the public health authorities to assess whether individuals should be advised or required to stay home from school, either because they may have a contagious disease, or because they are not immunized.

However, some students may be medically unable to receive certain vaccines because of a disability, including those disabilities that affect the immune system, such as HIV/AIDS, leukemia, or other cancers.  In this regard, some state laws generally contain medical exemptions to vaccine requirements.  Under normal circumstances, schools must make reasonable modifications to policies, practices, or procedures that otherwise require vaccinations, in order for these students to be able to attend school.  OCR advises that during an outbreak or potential outbreak of a vaccine-preventable disease, such as the measles, schools must follow existing laws and policies in a non-discriminatory manner and should seek guidance from and defer to public health authorities when determining whether, for students with disabilities, the school can continue to safely make such modifications to a policy, practice, or procedure that otherwise requires vaccinations in order to attend school.

For more information on civil rights implications involved in a school’s treatment of a potential measles outbreak, or other school law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

 

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Criminal Background Checks for Public Sector Employers – Part I

What Public Employers Should Know About the “Ban-the-Box” Movement

Debates surrounding criminal background checks have reemerged as the state has recently passed legislation prohibiting private employers from inquiring as to one’s criminal history during the preliminary stages in the hiring process. While the recent legislation is limited to the private sector, this “ban-the-box” movement has gained momentum throughout the country, with a primary objective of ensuring that candidates are being reviewed for their aptitude prior to addressing any background concerns. Although not required, in 2013 the state also adopted this practice. Consequently, it is important for public sector employers to be aware of the general climate and recent trends pertaining to criminal background checks so as to promote fair hiring practices.

By way of summary, the phrase “ban-the-box” refers to the question on employment applications asking applicants “have you ever been convicted of a crime” and providing candidates with the option of checking a “yes” or “no” box. While Illinois law currently prohibits employers from considering an individual’s arrest record, in practice this question often leads to applicants being discriminated against. The risk is that if an applicant checks “yes,” it will be used as a preliminary screening measure and will disqualify an applicant prior to conducting any further inquiry.

The problems posed by such a question is two-fold. First, in many instances, those in charge of the background check procedure may not be well-versed in the nuances of criminal law. While an employer may consider conviction information, dispositions such as “nolle pros,” “stricken off – leave to reinstate,” and “guilty with court supervision” are often mistakenly treated as convictions and used as disqualifiers.

Secondly, such a practice, without relying on independent fingerprinting information, places employers in a position in which they are basing an employment decision solely based on the information provided by the applicant. Again, because this area of law is especially nuanced, this self-reporting is often inaccurate. Individuals will mistakenly believe that “probation” kept an offense off of their record, while others will assume that they are required to disclose any arrest (or will do so to err on the side of caution). This may lead to inadvertent inaccurate reporting and/or falsification of an employment application.

To alleviate these concerns, the state legislature has required that private sector employers engage in the background check process only after an offer of employment has been extended. Accordingly, public sector employers should be cognizant of these legal trends and create a screening process that is narrowly tailored and set up in a way so as to minimize these potential pitfalls.

In the upcoming weeks, we will explore some of these background check issues in greater detail, so please be sure to check back!

By: Laura M. Julien

For more information regarding criminal background check requirements for public employers, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com

School Law Update: United States Department of Education and United States Department of Justice file “Statement of Interest” in pending transgender discrimination case, supporting transgender student’s Title IX/Equal Protection Clause Claims

Recently the U.S. Department of Education and U.S. Department of Justice (“the Departments”) filed a “Statement of Interest” in a federal transgender discrimination lawsuit pending in the U.S. District Court for the Eastern District of Michigan, Tooley v. Van Buren Public Schools, case no. 2:14-cv-13466-AC-DRG (E.D. Mich.) The complaint alleges that the plaintiff, who was a female at birth, but whose gender identity is male, was discriminated against by the school district.  The allegations of transgender discrimination against the school include that the student was prohibited from using the bathroom of the gender in which the student identified, and was bullied by his peers due to his gender identity.  The Departments ask the Court to “hold that the prohibition of sex discrimination under Title IX and the Equal Protection Clause encompasses discrimination on the basis of transgender status, gender identity, and sex stereotyping” and to deny the school’s motion to dismiss the plaintiff’s claims on those grounds.

For more information regarding transgender issues in schools, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com