After getting clobbered by a federal judge a few weeks ago, the EEOC used a query from nine states’ Attorneys General to clarify its position on employers using criminal background checks to screen job applicants.
The Attorneys General had written to EEOC chair Jacqueline Berrien to ask that the agency reconsider the stance it took in an enforcement guidance document last April.
Berrien’s letter began with a defense of the agency’s role:
Your letter criticizes the EEOC’s application of disparate impact analysis to the use of criminal history screens, both as set forth in the agency’s Enforcement Guidance and in two recently-filed EEOC lawsuits. Indeed, your letter asserts that “race discrimination cannot plausibly be your agency’s actual concern” and that the EEOC’s “true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals.”
At the outset, I want to make clear that it is not illegal for employers to conduct or use the results of criminal background checks, and the EEOC never has suggested that it is. The EEOC’s mission is to prevent and remedy employment discrimination prohibited under federal law. Applying disparate impact analysis to criminal background checks is squarely within this mission. …
Then she cut the to chase:
Your primary objection to the substance of the Enforcement Guidance relates to its discussion of individualized assessments. But this objection appears to be premised on a misunderstanding: that the Guidance urges employers “to use individualized assessments rather than bright-line screens.” This is incorrect. The Guidance does not urge or require individualized assessments of all applicants and employees.
Instead, the Guidance encourages a two-step process, with individualized assessment as the second step. First, the Guidance calls for employers to use a “targeted” screen of criminal records. A “targeted” screen considers “at least the nature of the crime, the time elapsed, and the nature of the job …”
Once the targeted screen has been administered, the Guidance encourages employers to provide opportunities for individualized assessment for those people who are screened out. Using individualized assessment in this manner provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records.
The Guidance’s support for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses.
Furthermore … the Guidance explains that an employer may decide never to conduct an individualized assessment if it can demonstrate that its targeted screen is always job related and consistent with business necessity.
Did ruling push agency to modify stance?
As you probably recall, just a few weeks ago, U.S. District Court Judge Roger W. Titus slammed the EEOC for bringing suit against the Freeman Companies, a national events marketing organization. The agency had alleged Freeman ”rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions.”
The judge said the “the story of (the lawsuit) has been that of a theory in search of facts to support it.” He also questioned the employment statistics provided by the agency, saying the data contained “a plethora of errors and analytical fallacies.”
The judge also questioned the EEOC’s apparent overall negative view of employers’ use of background checks:
For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process.
The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable. …
…Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. … (E)ven the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions. …
By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and faudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.
The judge also took the agency to task for two other cases brought by the EEOC — one against carmaker BMW and the other against retail chain Dollar General Corp.
At the time, observers termed the ruling “a major setback for the EEOC.” Did the verbal smackdown affect the way Berrien responded to the state AGs?