US Chamber Hosts Forum on Criminal Background Checks
March 13, 2014
An event held on March 6th at the US Chamber of Commerce took a closer look at employment background checks and why they matter to employers and the public. The event, titled “Background Checks and Employment: Why Background Checks Matter and the EEOC’s Current Enforcement Practices” brought together private business leaders, legal practitioners, health care providers, non-profits, and the media to discuss the current legal and regulatory climate for background screening.
Employers participating in the discussion cited public safety as the overriding and number one reason for conducting criminal background checks. Other reasons included mitigating the risk for civil liability for negligent hiring, decreasing the risk of fraud or theft in the workplace, and overall workplace safety and security. Statistics shared by the Consumer Data Industry Association showed that public opinion widely supports the use of criminal conviction information, with 90.7 percent of people surveyed supporting some use of conviction information in hiring.
The panels throughout the morning looked at what has changed as a result of the Equal Employment Opportunity Commission’s (EEOC) 2012 guidance on the use of criminal background checks. Some of the best insights of the day were from Don Livingston, a partner with Akin Gump Strauss Hauer & Feld. Livingston shared his opinions and observations on the changes in practice that have come about as a result of the EEOC’s 2012 guidance in a candid interview with the Wall Street Journal’s Mary Kissel. Livingston is former General Counsel for the EEOC, and now represents private employers, including the Freeman Companies—an employer that was sued by the EEOC for discrimination based on its use of employment background checks.
Livingston commented that prior to the 2012 guidance, the EEOC insisted that employers needed to be color blind–they were encouraged to “squeeze the discretion” out of the hiring process and establish rules to say what was permitted and what was not. Now, in the 2012 guidance, employers are being asked to conduct targeted screening with individualized assessments, creating a process that is overly discretionary. The problem for employers, according to Livingston, is that the EEOC has not given any instruction on what that process should look like, and has created a climate where even if an employer follows such a process, they may still be liable. At the very least, they are still subject to the high cost of an investigation and litigation—a cost that few employers can absorb and still survive.
In Livingston’s opinion, the 2012 guidance has been transformational in its effect. In many respects, the EEOC has already won. The fear of being the next “Freeman” and the notoriety of being sued has employers scrambling to establish individualized assessment, even though the EEOC has little success thus far in court.
The day concluded with a legal panel, which noted that the EEOC itself does not abide by its own guidance on criminal history. Livingston, along with attorney Pam Devata of Seyfarth Shaw and Julie Payne, Chief Legal Officer for G4S Americas, left the audience with a few points:
- While the 2012 guidance is not binding, it established de facto requirements and a new standard for targeted screens and individualized assessment.
- Moving a criminal background check to later in the process reduces the pool for a potential class action based on disparate impact.
- For now, smaller employers have less risk of being the target of class actions (unless the EEOC is eventually successful in using general population statistics to prove disparate impact).
- State laws requiring a criminal check are not a safe harbor, and may violate Title VII of the Civil Rights Act if they are not deemed to be job related.
- Conducting an individualized assessment may ultimately serve as a defense to a class action disparate impact discrimination claim.
The event was sponsored by the U.S. Chamber of Commerce, The Consumer Data Industry Association and the National Association of Professional Background Screeners.
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