EEOC Checkup: Where Things Stand
April 24, 2013
Nick, Jason and I were in Washington DC last week, just in time for some summer weather and a chance to see the last of the cherry blossoms. We were attending the National Association of Professional Background Screeners (NAPBS) Mid-Year 2013 Legislative Conference, a gathering of about 350 companies and clients taking our message about background checks to the Hill. We had the opportunity to hear from Equal Opportunity Employment Commissioner Constance Barker, the only Commissioner who voted no on last’s year’s EEOC guidance on the use of criminal background checks in employment.
Barker had warned last April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.”
A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory. As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.
But it’s only guidance, right? The EEOC, by design, does not have authority to write rules or regulations. But as Barker pointed out, until a court says it will not apply the guidance, the guidance has the effect of a regulation. And once a court is persuaded by and cites to the guidance, it becomes law. We knew it would take some time for the guidance to be addressed by the courts, and we are still waiting for pending litigation to shed some light on the effect of the guidance.
Meanwhile, a new twist in enforcement is the EEOC’s interest in third party liability. Barker cautioned that a new legal theory was being tested in some investigations to try to identify discrimination by third parties causing interference with employment decisions. Different from joint employer theory, or co-employment, this new theory would look at how third party service providers (like background screening companies) are influencing the employment decision. How much does the employer rely on a third party to decide whether or not to hire?
Barker’s advice—make it crystal clear that the employer makes the hiring decision. Review adjudication processes, matrices, and policies and avoid any practice or statement that would implicate a third party role in decision making. As background screeners, we are eager to help clients sort through the maze of criminal codes and understand criminal reports. We know you appreciate the help, and are willing to pay for it. But at the end of the day, the hiring decision needs to come from the employer.
One last note was on the issue of credit reports. Commissioner Barker confirmed that the EEOC is still interested in issuing guidance on the use of credit in the hiring process. That might be next in the queue, giving us some new guidance to chew on.
Commissioner Barker’s words were not especially uplifting or motivational. She didn’t sugar coat the message—employers need to evaluate hiring practices and work with screeners to avoid having targets on our backs. But true to her southern roots, she is a straight shooter. Given the current climate, I have an even greater appreciation for her remarks and her willingness to share some key insights and alert us to what may be coming up next.
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