Wednesday, November 13, 2013

EEOC Tells Employers “If you like your Criminal Background Check…you Can Keep your Criminal Background Check”



 After suffering defeats over its efforts to enforce guidelines on the use of criminal background checks, it appears the Equal Employment Opportunity Commission (“EEOC”) has launched its version of a charm offensive, while simultaneously girding for appellate battle over its latest courtroom loss.

At the recent American Bar Association's Annual Labor and Employment Conference, top EEOC officials argued that the federal agency was not trying to prevent employers from using background checks. The EEOC’s Senior Counsel James Paretti said the EEOC’s new guidelines merely seek a balance between employers’ interests in protecting property and ensuring personal safety, and making sure that minority job seekers are not subjected to disparate impact discrimination under Title VII.

Paretti denied that the EEOC was administratively seeking to create a new protected class of individuals with criminal records. Under the 2012 enforcement guidelines, the stated rationale for the EEOC’s position was that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, i.e. disparate impact.

One continuing complaint about the EEOC’s guidelines is that it places significant costs on employers to create and maintain screening systems to evaluate whether an individual with a criminal record should be excluded on the basis of business necessity, using factors such as the severity of the crime, the period of time since conviction and the specific duties and responsibilities of the job sought. The guidelines further require employers to allow for an additional individualized assessment to those excluded by the initial screening, to explain why they should not be disqualified.

In what appears to be a new approach by the EEOC, Paretti strongly suggested that while employers are free to use background checks, they should not do them until after employers already have determined that the applicant meets all other job qualifications. In a less than subtle threat, EEOC Commissioner Chai Feldblum noted that the agency was looking into whether the EEOC would consider it a record-keeping violation if employers did not retain data on the disparate impact the an employer’s background screening had on minorities.

I have two thoughts on this. First, requiring employers to go through the time and expense of ensuring an applicant’s qualifications, and then leaving a background check until last, could result in wasted efforts and additional costs. For example, an employer could spend significant time and effort confirming that a candidate is ideally qualified to be a daycare administrator, only to find out at the end, per the EEOC’s suggestion, that the job candidate is a convicted sexual offender, and ineligible for such a position.

Second, the EEOC’s intimation that employers who use background checks could be subject to even more stringent record-keeping requirements, belies their claim that they are not trying to eliminate employers from using background checks.

In a related note, you may recall in my September 30, 2013 posting, the EEOC suffered a court defeat in the case of EEOC v. Freeman. In that case, a District Court in Maryland granted summary judgment in favor of the defendant employer Freeman, dismissing the plaintiff EEOC’s claim that Freeman’s background check policies violated Title VII. In the Court’s opinion, it issued a stinging rebuke to the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it.”

On November 6, 2013, the EEOC appealed the District Court’s dismissal of the case to the U.S. Court of Appeals for the Fourth Circuit. Other than the loss of face over the Court’s rejection of their theory of liability, the EEOC has another strong motivation to appeal the adverse ruling. Following the ruling in its favor, Freeman filed a motion to require the EEOC to cover the company’s $1.2 million dollars in attorneys’ fees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com