In 1954, the United States Supreme Court released its unanimous opinion that found laws in several states requiring separate but equal educational institutions for African-Americans and whites violated the Fourteenth Amendment’s Equal Protection Clause. Chief Justice Earl Warren framed the question as “the constitutionality of segregation in public education,” saying, “[w]e have now announced that such segregation is a denial of the equal protection of the laws.” The Court ruled on cases from four states but the practice occurred in many more.
While the opinion did not have an immediate impact on the workplace, it was a precursor to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.
The EEOC has released its Performance and Accountability Report summarizing its fiscal year 2012. The EEOC reports a record level of recovery in discrimination matters for the year. The organization filed 122 lawsuits throughout the country with 20 percent of agency cases involving systemic allegations against the defendant. Administrative enforcement (mediation, settlements, conciliation) in the private sector amounted to $365,400,000. Through litigation, the agency recovered $44,200,000.
As I have commented before, the use of background checks by employers has increased significantly in recent years. There are now services everywhere, and the cost for these checks has dropped significantly. With the studies that document the cost to replace an employee, employers are looking to any means to screen candidates more effectively. The EEOC has cited studies that indicate as many as 90% of applicants undergo criminal background checks.
With that backdrop, the EEOC has provided Enforcement Guidance No. 915.002 regarding the use of criminal background information. This document does not alter the legal framework that covers background checks but sets out several points for consideration by employers.
Because certain racial and ethnic groups may be incarcerated at a higher statistical rate than others, use of criminal history for employment decisions could result in discrimination under Title VII. This discrimination would arise under one of two theories: disparate treatment or disparate impact. For disparate treatment, an employer treats a person differently because of race or national origin (allowing “group-related stereotypes” or allowing a non-minority applicant to explain criminal history while not allowing a minority candidate to do so).
For disparate impact, a policy or practice that seems neutral on its face may discriminate if it serves to screen out a protected group in a disproportionate way, and the policy or practice is not specifically job-related for the position and necessary to business. The EEOC has found that national data for arrest and incarceration rates for African Americans and Hispanics are sufficient for a finding of disparate impact for those protected groups when using criminal background data without job-related conditions. That finding shifts the burden of proof to the employer to show no disparate impact but can be contradicted by local data or information by a particular employer about its own hiring practices. There are a number of factors to review, and the EEOC draws a sharp contrast between convictions and arrests. For further information, the EEOC Guidance can be accessed by clicking on this link: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
What should you do when you receive a claim from the Human Rights Commission or Equal Employment Opportunity Commission? How you respond sets a tone for the charge, and also for defense of possible claims arising after the response. Here are five suggestions that should guide your response:
- Contact your EPLI carrier if you have insurance, and coordinate with counsel. Prompt reporting of a claim is a requirement of all insurance. An agency charge may be the first step to litigation, and input from counsel to investigate, review, and coordinate defense is important.
- Be accurate and inclusive. Conduct a sufficient investigation to verify the information. Also, preserve all pertinent information and documents, and avoid future spoliation issues by suspending document destruction practices.
- Explain how your business works. Details about your organization may help provide context for your actions.
- Recount all that happened completely. Even if the charge includes only an imprecise allegation, a comprehensive response with justification for all decisions is preferable. This includes making all necessary witnesses available, and you must ensure confidentiality and no retaliation during the interview process.
- Provide context for the charge. Outlining your consistent past actions displays that your organization is responsible and treated the current employee the same as others.