EEOC Must Testify On Own Use of Criminal Background Checks and Credit Histories for Employment Screening

A federal district Court in Maryland has ruled that an employer sued by the Equal Employment Opportunity Commission (EEOC) for alleged discriminatory use of criminal background checks and credit histories in hiring may compel the EEOC the testify regarding the agency’s own use of criminal records and credit information for employment screening. The ruling EEOC v. Freeman, D. Md., No. 09-2573, 8/14/12 is available here: http://op.bna.com/dlrcases.nsf/id/kmgn-8x7jwz/$File/freemanprotect.pdf.

In September 2009, the EEOC – the agency that enforces federal laws prohibiting employment discrimination – sued the defendant, a corporate events planner, alleging it systematically engaged in a “pattern or practice” of unlawful discrimination against black, Hispanic, and male job applicants under Title VII of the 1964 Civil Rights Act by using criminal records and credit histories as hiring criteria.

The EEOC opposed the deposition on the basis that the information was not relevant and that a deposition would be “unduly burdensome.” According to the ruling by U.S. Magistrate Judge Charles B. Day on August 14, 2012, the deposition regarding the EEOC’s hiring practices could produce information relevant to the defense that its consideration criminal backgrounds and credit histories is job-related and consistent with business necessity. Day wrote if the EEOC “uses hiring practices similar” to those used by the defendant, “this fact may show the appropriateness of those practices,” since the EEOC is “the agency fighting unfair hiring practices.”

The court added the EEOC and the defendant “consider similar factors” in evaluating job applicants with criminal backgrounds, including the nature of the criminal offense, the seriousness of the conduct, and the particular job to be filled. These three factors are part of the updated EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

“Unfortunately, when the EEOC issued its updated criminal guidance in April 2012, it did not first give knowledgeable parties with practical real world experience the opportunity to comment,” says Attorney Les Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR). “If it had, the EEOC would have been advised that some of its suggestions just do not work in the real world.”

Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to employment screening, adds: “By having to explain its own hiring processes when it brings lawsuit, the EEOC will have a chance to learn firsthand the practical difficulties employers face. It will be interesting to see if the EEOC lives up to its own Guidance, and if the very agency charged with fighting discrimination uses defensible processes.”

Nearly a year before the EEOC voted to update Guidance for criminal records at a meeting on April 25, 2012, Rosen submitted a letter of public comment to the EEOC regarding the July 26, 2011 EEOC meeting on ‘Arrest and Conviction Records as a Hiring Barrier’ that included the following summary:

To my knowledge, the EEOC has not hired on its own behalf in any of its offices an applicant with a criminal record (beyond low level matters) and had to deal with the complex issues involved in considering and ultimately employing persons with criminal records. It places a substantial burden on employers to bring an individual into the workplace that represents a potential threat to co-workers, clients and the public. It is easy to support giving ex-offenders a second chance, and in fact our industry’s goal is to help employers place their applicants in positions that are appropriate for them based on both their experience and background, not to exclude them from the workplace. However, if the EEOC will not even bring ex-offenders into its own workplaces, how can the Commission expect private employers to take on a risk that the EEOC will not take on its own?

I am hopeful that EEOC will undertake a fair and well-reasoned evaluation of all the issues and how its rulemaking in this area would impact all stakeholders, and not act solely on its power to make rules or to commence litigation. 

The letter of public comment from Attorney Les Rosen to the EEOC regarding the July 26, 2011 EEOC meeting on ‘Arrest and Conviction Records as a Hiring Barrier’ is available at http://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php.

For information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background screening form accredited by the National Association of Professional Background Screeners (NAPBS) – at http://www.esrcheck.com/, call 415.898.0044, or email customerservice@esrcheck.com.

Sources:
http://op.bna.com/dlrcases.nsf/id/kmgn-8x7jwz/$File/freemanprotect.pdf
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
http://www.eeoc.gov/eeoc/meetings/4-25-12/index.cfm
http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm

About Employment Screening Resources (ESR):

Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/, call 415.898.0044 or 888.999.4474 (Toll Free), or email customerservice@esrcheck.com.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com.