The EEOC begins to target company policies and practices pertaining to recruitment and hiring

Source:  Lexology article by Pankit J. Doshi , Sheppard Mullin Richter & Hampton LLP

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) draft Strategic Plan for Fiscal Years 2012 to 2016 includes an important consideration for employers: one of the EEOC’s nationwide priorities is to eliminate systemic barriers in recruitment and hiring. The EEOC found that racial and ethnic minorities, older workers, women and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages, including exclusionary policies and practices, the channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law. Because of the access EEOC has to obtain data and documents and potential evidence of discrimination in recruitment and hiring, the EEOC has determined that it is better situated to address these issues than individuals or private attorneys who have difficulties obtaining such information.

The practical impact on employers is to make sure their recruitment and hiring policies, including pre-employment testing and other applicant screening practices, are in strict compliance with the law. Employers should examine any practices that get used companywide, especially tools used to eliminate candidates, such as background checks or testings, which may have a disparate impact. In fact, the use of criminal background checks recently came under scrutiny by the EEOC, where the EEOC stated an employer may use criminal history information to make employment decisions only when it is job related for the position in question and consistent with business necessity, as well as recent enough and sufficiently job-related to be predictive of performance in the position sought. Moreover, assessment tests used in hiring and promoting decisions must be carefully reviewed. Simply hiring a third party vendor to conduct assessments or create tools used for assessment purposes is not enough to ensure compliance with the law. Rather, the employer must ensure that the vendors’ assessment materials and processes are validated specifically for use on the group of jobs for which the employer intends to hire and to ensure that they do not inadvertently create a disparate impact that could subject the employer to exposure. Finally, employers should also increase training for employees involved in the hiring process in order to avoid an EEOC investigation into their hiring policies and practices.

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This information is intended to be educational and should not be considered legal advice on any specific matter.

Federal "Ban the Box Act" seeks to outlaw questions about criminal convictions prior to a conditional job offer

Source:  Lexology article by Michael A. Sands and Sheeva J. Ghassemi-Vanni of Fenwick & West LLP


As part of the "Ban the Box Act," a recent House Bill would prohibit employers from asking applicants about criminal convictions unless (1) a conditional offer of employment has been made or (2) granting employment could pose unreasonable safety risks.  Under the Bill, the Equal Employment Opportunity Commission would be required to issue rules and guidelines defining the employment categories in which an individual's criminal history could pose such a safety risk and the factors to consider in deciding whether criminal history poses an unreasonable risk. 

The goal of the Bill is to curtail recidivism:  those with convictions who cannot find jobs are more likely to commit additional crimes, according to the Bill's sponsor.  Regardless of whether the Bill passes, employers should exercise care and good judgment when asking applicants about their criminal history.

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This information is intended to be educational and should not be considered legal advice on any specific matter.

Bill would generally ban pre-employment criminal history inquiries

Source: Lexology
Article by: Ilyse Schuman of Littler Mendelson

Legislation introduced on July 26, 2012 would make it unlawful for an employer to ask job applicants whether they have ever been convicted of a crime until after a conditional offer of employment is made, except in limited circumstances. Specifically, the Ban the Box Act (H.R. 6220), introduced by Rep. Hansen Clarke (D-MI), would prevent an employer from “mak[ing] inquiries of an applicant for employment or otherwise seek[ing] information about such an applicant (including through the use of any form or application) relating to whether such applicant has ever been convicted of a criminal offense.” The measure would permit such questions only after a conditional offer for employment has been made, or where offering the applicant the position before a criminal background check is conducted “may involve an unreasonable risk to the safety of specific individuals or to the general public.”

The bill would direct the Equal Employment Opportunity Commission (EEOC) to issue regulations defining the categories of employment applicable to the limited exceptions, and factors that employers would consider in assessing whether an individual's past criminal history poses an unreasonable risk.

Aggrieved job applicants would be able to avail themselves of the same rights and remedies offered to them under Title VII of the Civil Rights Act.

The bill is not expected to advance this year. In April the EEOC approved enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Adverse Impact Applies to More Than the Final Selection

Recent findings of the EEOC of hiring discrimination reinforce the importance of reviewing all stages of a company's selection process.  Even where methods are consistently applied (i.e. testing, background checks), it is important that the methods used are validated.  Adverse impact analyses applied to each stage of a screening process may indicate where protected groups are disproprtionately affected and where further evaluation of the method used is necessary.  The most recent example is the criminal background check policy formerly used by Pepsi. 

As announced on 1/11/12, Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC). 

The EEOC’s investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.   The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

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