The U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – has alleged that the criminal background check policy of Dollar General Corp., one of the largest discount retailers in the U.S. with over 10,000 stores in 40 states, has a ‘disparate impact’ on African-American job candidates and employees and violates of the Civil Rights Act of 1964. A full report on the story, a prime example of how criminal background checks by employers are coming under greater scrutiny by the EEOC, is available on the Nashville Business Journal website at: http://www.bizjournals.com/nashville/news/2012/09/10/dollar-generals-use-of-criminal.html. Continue reading
Attorney and safe hiring expert Lester Rosen, Founder and CEO of San Francisco, CA-area background check firm Employment Screening Resources (ESR), will be one of three panelists participating in an encore presentation of a 90 minute CLE webinar/teleconference from Strafford titled ‘Pre-Employment Background Screening After EEOC’s New Guidance: Structuring Policies to Comply With Title VII, Fair Credit Reporting Act, and State Laws’ on Thursday, September 6, 2012 from 1:00 PM to 2:30 PM EDT (10:00 AM to 11:30 AM PDT). For more information, visit: http://www.straffordpub.com/products/pre-employment-background-screening-after-eeocs-new-guidance-2012-09-06. Continue reading
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. Continue reading
The U.S. House of Representatives recently passed an appropriations bill (H.R. 5326) that provides funding for several agencies including the allocation of $367 million the U.S. Equal Employment Opportunity Commission (EEOC) but also includes amendments that would block implementation and enforcement of several programs including the new EEOC guidance on the ‘Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ for employers using criminal background checks. The full text of H.R. 5326 is available at: http://www.govtrack.us/congress/bills/112/hr5326/text. Continue reading
The U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces federal laws prohibiting employment discrimination, today voted 4-1 to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The updated EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Questions and Answers (Q & As) about the EEOC’s Enforcement Guidance are at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm. Continue reading
According to a new study by the National Employment Law Project (NELP), since nearly 65 million people in the United States – more than one in four adults – are estimated to have criminal records, employers that use criminal background checks for employment to shut out job applicants with criminal records without considering how long ago the offense occurred, the nature of the offense, and whether the offense is job-related, have prevented millions of people from finding work and compromised the economy and public safety. Continue reading
The Equal Employment Opportunity Commission (EEOC) announcedÂ on October 1, 2009 that they have filed a lawsuit against Freeman, a firm that offers nationwide convention services, on the basis that it used credit reports and criminal records to unfairly discriminate against black, Hispanic and maleÂ job applicants.Â Â Â This case has the potential to have a profound impact on the way employers hire in the U.S.
According to the EEOC press release the lawsuit charged that, â€œThis practice has an unlawful discriminatory impact because of race, national origin and sex, and is neither job-related nor justified by business necessity.â€
Even though the use of criminal records and credit history does not directly target peopleÂ Â protected by civil rights laws, the argument is that when those criteria were applied to Freeman applicants, the end result was that greater numbers of blacks, Hispanics and males were affected.Â This is referred to as a “disparate impact.â€ Â In other words, by using this information to make hiring decisions, the practical impact was that members of protected groups were unfairly treated and rejected in higher numbers.Â Â Â
The EEOC has been active in identifying barriers that contribute to discriminationÂ Â Â Â In 2007, the EEOC launched the â€œE-RACE” (Eradicating Racism and Colorism from Employment) Initiative. The purpose was to â€œimprove EEOCâ€™s efforts to ensure workplaces are free of race and color discrimination.â€ http://www.eeoc.gov/eeoc/initiatives/e-race/index.cfm
The use of credit reports and criminal records being used to deny employment has been hot-button issues for the EEOC.Â The last significant case was El. v. Septa, 479 F.3D 232 (3d. Cir. 2007), where a 40 year-old second degree murder conviction was allowed to be used to deny employment.Â However, part of the decision was based upon the fact that the applicant that was suing for discrimination did not present any statistical evidence to rebut expert testimony by the employer that even a 40 year old crime can be relevant.Â Â The company had a “bright-line” policy of rejecting applicants with convictions for violence.Â
Since then, a study was conducted by Professor Alfred Blumstein at Carnegie Mellon University that suggested that after a period of as little as five years for some crimes, a person with a criminal record was no more likely to re-offend then a person with no criminal record.Â Â Ironically, the same professor was the expert in the El v. Septa Â matter where a 40 year old murder was sufficient to deny employment .
ESR has written an in-depth analysis of the Blumstein study at:Â Â http://www.esrcheck.com/Blumstein-and-Nakamura-study-on-redemption-in-Criminology.php”>http://www.esrcheck.com/Blumstein-and-Nakamura-study-on-redemption-in-Criminology.php
This case will not likely be finalized anytime soon and could well need to go to higher courts for a final resolution.Â However, the case is a stark reminder that employers need to review their hiring practices, to ensure that any pre-employment assessment tool is both a valid predictor and job performance and not discriminatory.Â
In the case of criminal records, Employment Screening Resources (ESR) has long advised employers that they should NOT automatically reject an applicant with a criminal record, but should instead determine if there is a business necessity that precludes hiring.Â The EEOC has suggested that employers take into account the nature and gravity of the crime, the nature of the job, and the age of the offense.Â Similarly, ESR has also long advised employers that credit reports should be approached with caution, and only used where relevant to the job, such as positions involving access to cash, assets or fiduciary duties.
Â Security Management, the publication of ASIS, the leading international security organization, featured an article on Background Checks by Lester Rosen, President of Employment Screening Resources (ESR) in the May, 2009 edition.
The article is entitled: “How to Avoid Hiring Mishaps,” and covers recent cases, trends, new developments and best practices when it comes to pre-employment background screening checks.Â Areas covered include the proper use of criminal databases, criminal records and discrimination under Title VII, the use of credit reports, new laws in New York on the employer’s use of criminal information, education verification and the use of social networkingÂ sites such as Facebook and MySpace.
The article is at: http://www.securitymanagement.com/article/how-avoid-hiring-mishaps-005529Â
ASIS also reviewed the newest book by Les Rosen, “The Safe Hiring Audit.”Â