Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

Well known Chicago-school law professor Richard Epstein has taken on the employment discrimination laws and the EEOC in a newly published column by conservative think-tank the Hoover Institution.  “Antidiscrimination laws can wreak havoc on job creation,” says Epstein. “The Equal Opportunity Employment Commission, a federal agency tasked with enforcing antidiscrimination laws, has demonstrated just how destructive such laws can be. “

Epstein targets as “folly” the EEOC’s “Enforcement Guidance” of April 2012, dealing with criminal arrest and background checks.  He states that this “newest confection out of the EEOC orders most employers to do exactly what the law forbids. It introduces an explicit classification into the hiring equation by imposing a higher standard for refusing to hire minority workers than for others. The Enforcement Guidance also applies even when it is clear that the employer’s refusal to hire certain workers is not because of race but because of the evident risk that a criminal record could present to the employer, its other employees, and its customers.”

Excoriating the EEOC, Epstein says that “[n]othing is more dangerous in public or private affairs than power without responsibility. It is therefore a fair question to ask how the EEOC guidance took its final shape.”

After a long exegesis of the law and its enforcement, Epstein concludes that both employers and employees suffer because “by raising transaction costs, the EEOC will continue on its mindless job-killing path.  Once again, the EEOC seems utterly oblivious to the harm that it causes to the groups that it most wants to help—and indeed to everyone else.” 

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A new federal Title VII lawsuit was just filed in California alleging that the NCAA’s 2011 rule which permanently bars, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminates against African-Americans.  See Hardie v. National Collegiate Athletic Association et al, 3:13-cv-00346 (S.D. Ca).

The complaint alleges that “Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African-Americans. … African-Americans are arrested, charged and convicted of drug crimes at greater rates than whites, even though usage rates are similar.”

We blogged on April 29, 2012 that there is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration. However, we know that discrimination may involve an employment practice or policy which has a “disparate impact” upon members of a protected class.

Employers should note that the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987.

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Three Democratic New Jersey state senators have introduced a bill called “New Jersey's Opportunity to Compete Act,” which seeks to eliminate disclosure of criminal history on job applications.   Supporters of the bill contend that criminal background checks have a disproportionate impact on minority communities. 

Said one senator:  “One in four Americans has a criminal record that could show up in a routine background check. With the increased usage of these checks, qualified applicants — many of whom have already paid the price for their past infractions — cannot even get their foot in the door to be considered for jobs.”
 

Laws which limit criminal background checks are already on the books is many states, such as California, Connecticut, and Massachusetts, as well more than 40 cities and counties, such as Atlantic City and Newark.

The proposed law would eliminate the “check box” on employment applications (hence the bill’s nickname “ban the box”) that would require job applicants to note their criminal history. The bill’s authors claim that employers often throw out applications with checked boxes.

However, the bill provides that employers may still consider serious violent crimes such as murder, attempted murder, arson, terrorism and sex offenses that require registry, and may ask about criminal history after a conditional offer is made. There are several other provisions which permit consideration by employers of criminal backgrounds.  The bill also provides certain safeguards for applicants who are denied employment, such as appeal and the right to challenge the accuracy of their criminal history.

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The EEOC conducted a public meeting this past week and voted 4-1 to approve its proposed guidance which deals with the use by employers of arrest and conviction records in background checks used for hiring. We reported last week that EEOC Commissioner Lipnic had stated that this was a key upcoming agenda item for the EEOC. Commissioner Constance S. Barker was the lone dissenter.

The guidance is not all that easy to understand, much less comply with, so we will give a capsule summary and until we can digest it further and until there are some court cases which interpret it, we will sheepishly provide you with links to the appropriate EEOC web sites and let them help you figure it out.

The EEOC press release referred those concerned to its Enforcement Guidance and a Question-and-Answer (Q&A) document, These web sites also set forth the EEOC’s suggested “best practices.” The materials used at the public meetings, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

Title VII prohibits discrimination in employment based on protected classes such as race, color, national origin, religion, or sex. There is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration.

However, we know that discrimination comes in two flavors – it may be intentional, or it may involve an employment practice or policy which may have a “disparate impact” upon members of a protected class. In the case of criminal background checks, the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987

Basically, the approved guidance prohibits the use of criminal record information unless it is “job related” and “consistent with a business necessity defense.” What does this mean? And how will this impact employment practices? And will this put an undue burden on employers?

EEOC Chairwoman Jacqueline A. Berrien has stated that “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

But dissenting Commissioner Barker claims that the impact on employers will be grave: "If I were a business owner, I would never again conduct another criminal background check on a potential employee unless I was required to under federal law. Why should they? The guidance tells them they are taking a tremendous risk if they do."  The U.S. Chamber of Commerce agrees.

After reviewing these websites, please inundate us with your questions and confusion.

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I just returned from Washington D.C., having attended last week’s 2012 Staffing Law Conference of the American Staffing Association.

Besides the welcome opportunity to hear speakers from across the country discuss the staffing industry and the legal challenges that it faces, which I am all too familiar with, I was particularly interested in what one speaker had to say.  EEOC Commissioner Victoria A. Lipnic indicated that the EEOC’s upcoming agenda related to employment discrimination will include continuing the practice of filing between 200-300 lawsuits per year, generally addressing alleged systemic discrimination. She noted that while the EEOC and its general counsel’s office make policy and oversee the workings of the nationwide field offices, the individual field offices are relatively autonomous in bringing the lawsuits.

Commissioner Lipnic also noted that the EEOC is presently occupied with drafting and/or updating its guidelines relating to credit checking as part of an employer’s hiring process, as well as the hiring of individuals with criminal histories.           

This conference was conducted on the heels of the announcement of the resignation effective April 29, 2012 of EEOC Commissioner Stuart Ishimaru, who has served since 2003.  The four remaining members of the EEOC are Commissioner Lipnic, and Commissioners Jacqueline Berrien (the Chairperson), Chai Feldblum and Constance Barker.     

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In case you were wondering, the title to this blog is not a typo.  We have posted two recent blogs (March 22, 2011 and February 9, 2011) cautioning employers on the use of background checks.  Although there are currently several laws pending that would restrict the use of background checks, only one recently passed. 

On April 13, 2011, Philadelphia Mayor Michael A. Nutter signed an Ordinance restricting public and private employers with more than ten employees in the City of Philadelphia from inquiring into arrests and convictions.  The Ordinance will take effect July 12, 2011.  The key provisions provide:

• Defines "application process" as beginning when the applicant inquires about employment being sought and ending when the employer accepts an employment application;
• Employers may never, whether during the application process or thereafter, inquire into arrests that did not result in a conviction and which are not currently pending;
• Employers may not ask on an application or during the application process about criminal convictions;
• Employers may not ask about criminal convictions during the initial interview; and
• If an employer chooses not to interview a candidate before making a job offer, then the employer may never inquire about the candidates criminal convictions.

What should employers do prior to July 12, 2011?

1. Review employment applications to remove any questions asking applicants to disclose criminal history.
2. If you don't have a written application, develop one so there is no question as to when the application process ends.
3. Train hiring managers and HR personnel to avoid asking improper questions

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