By Rights: Answers to Your Human Rights Questions

Can employer post employee photos in public waiting room?

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

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Perfume called a hazard to employee's health

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.

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Can a supervisor ask about your disability?

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 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).

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Religious discrimination against high school athlete?

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.

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Can you 'seal' records of a human rights charge?

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 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 us at 651-539-1100 or Toll Free 1-800-657-3704 to discuss filing a charge of reprisal.

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Criminal background check turns up 24-year-old conviction

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. The Minnesota Human Rights Act does not contain 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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Discrimination because of public assistance?

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 eviction or cited for infractions, you may wish to contact us at 651-539-1100 or Toll Free 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.

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Single mother told she's abusing sick leave

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 subjecting your absences to increased scrutiny, you may wish to contact us at 651-539-1100 or Toll Free 1-800-657-3704 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.

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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.