Restrictions against discrimination, both federal and state, have become an unquestioned part of the landscape for human resources. With very few exceptions, employers cannot discriminate on the basis of several protected classes.
This week we marked the 50th anniversary of the Civil Rights Act of 1964. While not the first civil rights legislation, the Act was sweeping in its scope and significance when President Johnson signed it into law on July 2, 1964. The Act made discrimination on the basis of race, color, religion, sex, or national origin illegal in the workplace and places of public accommodation.
What has become commonplace and expected for recent generations of workers was a landmark achievement in United States history.
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.
Wilson Worley attorney George Samuel asks, “Is Requesting Psychological Counseling the Same as Requesting a Medical Exam?” For his discussion of the recent Sixth Circuit Court of Appeals opinion in Kroll v. White Lake Ambulance Authority, click here.
Wilson Worley employment attorney Sam Booher discusses two recent employment law developments: (1) A recent EEOC release states that transgender individuals are protected from discrimination under Title VII; (2) A recent federal circuit court decision finds that making a job offer contingent on withdrawal of an EEOC charge of discrimination is unlawful retaliation. For the complete discussion in the newsletter, follow this link to the Wilson Worley website.
The EEOC has noted that use of criminal background information in hiring decisions can result in discrimination against protected classes. The use of criminal records for employment decision making is not prohibited by federal law. Still, an employer may be required to establish how the use of criminal records is “job related and consistent with business necessity.”
There are several steps that an employer can take to reduce the risk of utilizing criminal records when making employment decisions:
1. Adopt a written policy or procedure for using criminal conduct in the review of candidates and employees;
2. Obtain criminal record reports that are “job related for the position in question and consistent with business necessity”;
3. Employ individual review questioning whether the screening process is job-related and consistent with business necessity;
4. Train management and those involved in employment decisions regarding the company policy or procedure;
5. Maintain confidentiality for all criminal records; and
6. Follow the policy or procedure that is adopted.
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.