J.B. Hunt Revises Its Policy After EEOC Race Discrimination Investigation
July 3, 2013
Transportation giant J.B. Hunt Transport, Inc. has entered into a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), over charges of racial discrimination based on a criminal background check. In a statement issued by the Commission, the EEOC claims that J.B. Hunt discriminated against an African-American job candidate who was denied a truck driver position at a J.B. Hunt facility in San Bernardino in 2009. The agency claims that the company denied employment based on a criminal conviction record that was unrelated to the duties of the job. The alleged victim has entered into a private settlement agreement with J.B. Hunt.
In addition to the specific allegations in the San Bernardino incident, the EEOC investigated the company’s broad policies and warned against the use of blanket prohibitions that disqualify candidates with criminal records. The EEOC news release cites its policy guidance which was reissued on April 25, 2012.
While the particulars of this case have not been released, make no mistake that the EEOC will continue to investigate employers suspected of discriminating under a “disparate impact” theory—the theory that disqualifying candidates based on a criminal convictions might have a discriminatory impact on protected classes. Investigations like the one here is one of the top priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). Olophius Perry, district director of the EEOC’s Los Angeles District Office stated:
“Employers should follow J.B. Hunt’s lead in reviewing and revising existing arrest and conviction policies so that they comply with federal guidelines.”
For those of you who want a refresher on the EEOC Guidance, take a look at my previous post, EEOC Guidance in a Nutshell.
A few choice nuggets:
The current EEOC guidance supersedes the old policy statements issued by the EEOC in 1987 and 1990 on conviction and arrest records. Job relatedness and business necessity remain the legal standard for an employer’s defense.
Targeted Screening with Individualized Assessments:
“The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, the nature of the job (the Green factors). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought
- Individualized Assessment
Practical Implications for Employers
- Eliminate policies that exclude applicants with any criminal record.
- Review your paper job applications and pre-hire documents. If you are using an ATS or web based applicant entry system, consider removing any inquires about criminal history from the application.
- Limit inquiries about criminal convictions to those which are job related.
- While individual assessment is not required by Title VII, the guidance implies that without it, you will have a more difficult defense. No examples are given of a scenario where an employer is successful without individualized assessment.
- If an individual does not respond to an employer’s request for additional information, the employer can make a final decision without the additional information. How long or under what circumstances an employer must wait is not clear.
- If you use a third party CRA to conduct criminal screenings, review your packages and their reporting policies to ensure compliance.
- If you use a third party CRA to adjudicate criminal results, consider building in a review process to comply with the individualized assessment recommendations.
- Consider FCRA adverse action procedures and ways to incorporate the request for additional information needed for individualized assessments.
- Note that simply having a reputation for discouraging applicants based on race may invite investigation by the EEOC.
- Large applicant pools have greater potential for disparate impact, so big employers with high turnover should seek counsel in determining the best means of compliance.
- Compliance with a Federal law/mandate that conflicts with the Guidance is a defense.
- State and local mandates are NOT a defense. They are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.
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