Friday, August 16, 2013

Court Slams EEOC Attempt To Preclude Background Checks

In one of a handful of recent Equal Employment Opportunity Commission (“EEOC”) cases brought challenging  employers’  use  of background checks, the EEOC has been squarely defeated (at least prior to any appellate review).  Judge Roger W. Titus of the United States District Court for the District of Maryland granted summary judgment in favor of the employer, Freeman, dismissing the EEOC’s claims that Freeman’s use of criminal and credit histories in hiring had an unlawful disparate impact on African-American, Hispanic, and male applicants.  The court provided a limited roadmap  for employers on how to deal with credit and criminal background checks.  It  makes clear that, at least for Judge Titus, the important aspects of an employer’s background check policy are:  not using blanket checks; separating out “credit sensitive” positions from ones where a credit history is likely not relevant; limiting how far back in time the criminal background checks extend; evaluating the relationship between underlying criminal conduct and the position at issue; generally performing the background checks after an offer has been made; and, having a multi-step review process prior to final employment decisions.

Attorneys General Challenge EEOC’s Criminal History Policy

Shortly before the EEOC v. Freeman case was decided, nine state attorneys general sent a letter to the Equal Employment Opportunity Commission (“EEOC”) challenging the EEOC’s position on the permissible use of criminal history background checks.  In particular, the letter (found here[AU2] ) addressed the lawsuits filed by the EEOC against Dollar General and BMW Manufacturing Co., LLC (“BMW”) and those companies’ use of bright-line criminal background checks in the hiring process.  The attorneys general accused the EEOC of attacking the use of criminal background checks in the hiring process, of unlawfully expanding Title VII protections, and of creating a further burden on businesses.

Tweeting for a Toke, Man Loses Job

A reminder to all employers and employees about the relevance of social media in the workplace – if you’re planning something illegal, posting it publicly on Twitter (or Facebook, Instagram, or any other publicly accessible social media site) is generally a bad idea.