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Criminal Background Checks and the EEOC: Where's the Evidence?

 

Do pre-employment criminal background checks discriminate against minorities? Not according to the U.S. District Court for the District of Maryland.

Last week, the U.S. District Court for the District of Maryland ruled that the Equal Employment Opportunity Commission failed to show that a nationwide event planning company’s use of criminal background and credit-checks resulted in a disparate impact against black and make job applicants.

In a stunning rebuke to the controversial Enforcement Guidance Regarding Consideration of Arrest and Conviction Records in Employment Decisions, the District Court hammered the EEOC’s evidence, dismissing its analyses as “flawed,” “skewed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty.” Specifically, the court determined that one EEOC expert’s analysis focused on an unrepresentative section of applicants to fit the commission’s theory that pre-hire employee criminal background checks have a disparate impact on minorities.   EEOC

Yet, the reports furnished by the EEOC were not the only thing that concerned the court; the EEOC also failed to meet its burden of raising triable disparate impact claims because “the commission did not identify a specific employment practice responsible for the alleged impact.” Citing Wards Cove Packing Co. v. Atonio, the court held that “under Title VII, it is not enough to show that ‘in general’ the collective results of a hiring process cause disparate impact. Statistical analysis must isolate and identify the discrete element in the hiring process that produces the discriminatory outcome.”

While the EEOC is still considering an appeal, the court’s ruling was clear: “it is simply not enough to demonstrate that criminal history or credit information has been used,” to advance a discrimination claim based on disparate impact. Granted, the issue of criminal background checks and disparate impact claims remains far from settled, last week’s U.S. District Court ruling should offer encouragement to employers drowning in red tape and over-zealous regulation.

 

Employee Criminal Records: New Rules from the EEOC

 

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued formal guidance regarding employers’ use of criminal records in making employment decisions. The Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 is the EEOC’s first policy statement on the issue in 22 years. It addresses topics such as how an employer’s use of an individual’s criminal history can violate Title VII, what generally applicable policies the EEOC believes employers should follow to avoid violating Title VII, and employer best practices, among others. A press release and a question and answer resource accompanied the guidance’s release and is available on the EEOC’s website.

In short, the guidance summarizes that certain uses of criminal records may result in either disparate treatment or disparate impact under Title VII, the former occurring when “an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability);” and the latter under circumstances where “[a]n employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”EEOC

To meet the “job related and consistent with business necessity” defense, the guidance recommends employers:

  • Validates criminal conduct screens for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards; or
  • Develop a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.

The EEOC’s “best practices” include:

  • Eliminating policies or practices that exclude people from employment based on any criminal record.
  • Training managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination.
  • Developing a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct that identifies essential job requirements, related disqualifying offenses, and maintains a record of the decisions made, etc

Bottom Line for Employers

While the proper and appropriate use of employee criminal records by employers is primarily controlled by state law and regulations, this recently released policy statement provides important insight into how the federal government has interpreted many years of court precedent and how it will interpret employer practices in the future. Accordingly, employment decision- and policy- makers must be familiar with these materials. Given that the guidance is the EEOC’s first policy statement on the use of criminal records by employers in over 20 years, it presents a timely opportunity for employers to review their own practices and revise them where necessary.

Unfortunately and unsurprisingly, many of the aspects of the EEOC’s recommendations and best practices carry the potential for increasing the cost of conducting the criminal background checks that are often considered integral to maintaining a productive workforce. Therefore, a careful balancing of both legal and financial decisions may be in order. No matter what decisions are made, it is paramount that employers continue to be mindful of, and to comply with, current state laws and regulations concerning the use of employee criminal records.

--Kyle A. McClain is an associate in the Hartford office of Siegel, O’Connor, O’Donnell & Beck, P.C., where he practices labor and employment law.

The Most Important Part of a Joke? Timing

 

Employers often consider the many claims asserted by employees to be a joke.

Management is often bewildered by an employee failing to abide by the simple rules of coming to work, arriving on-time, and behaving within the stated expectations contained in the employee manual. Why can’t employees be responsible for their own actions rather than faulting others for their shortcomings? And, worse, when the business enforces appropriate rules, what is the meaning of the employee’s claim that the discipline or termination was an act of illegal discrimination?EEOC

While many were out holiday shopping, on December 20, the Second Circuit Court of Appeals further refined the 90-day deadline for filing a civil action after the EEOC mails a right to sue letter. 

In Tiberio v. Allergy Asthma Immunology of Rochester, the Second Circuit faced the issue of when the former employee received her right to sue letter. Tiberio was employed as a nurse and fired after accusations that she had unlawfully accessed medical charts of other employees and falsely ordered prescriptions.  Tiberio filed a discrimination claim.

After the EEOC concludes its investigation of a charge of discrimination, the right to sue letter is dated and mailed. In this case, the EEOC mailed a right to sue letter with copies to the employer and Tiberio’s counsel. The mailing of the letter is not the important date; rather, the 90 days start ticking from the date when the complaining employee receives it. The “right to sue letter” has long been a problem. While some agencies track their correspondence with certified mail or email, the EEOC does not, leaving the parties and the courts to speculate as to when the employee-claimant received the all-important letter.

Such guess-work has caused the courts to create two presumptions:

  1. A right to sue letter is mailed on the date of the letter; and
  2. A mailed letter is received three days after its mailing.

As I sit writing this blog, I see a right to sue letter on my desk dated May 12, 2011. It was stamped “received” in the EEOC’s Boston office on June 1, 2011, and “received” by my client June 10, 2011. Clearly, the letter was not mailed on the date it says it was mailed and it certainly cannot be said to have been delivered within three days after the presumed mailing.

Bottom Line for Employers

So what happened with Tiberio? She filed a complaint with the District Court 96 days after the right to sue letter was issued. In an effort to circumvent this blown deadline, she claimed that she should have 90 days from the later date when her attorney received a copy of the letter. That suggestion did not sit well with the court. The Second Circuit has now held that the 90 day period begins to run on the date when the letter is first received either by the claimant or counsel, whichever is earlier. For the employer, he who laughs last, laughs best.

—Glenn Duhl represents management in employment law and litigation including breach of contract, wrongful termination, discrimination, defamation, emotional distress, wage and hour, sexual harassment, restrictive covenants and trade secret misappropriation matters.

                                     

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