On Monday, the Federal Trade Commission and the Equal Employment Opportunity Commission issued joint publications offering informal guidance on conducting background checks that comply with the Fair Credit Reporting Act and anti-discrimination laws. The overlapping rules and jurisdiction of these two agencies in this area of the law can sometimes be confusing for employers.
The first brochure, Background Checks: What Employers Need to Know, offers nuts-and-bolts guidance for employers to consider when investigating the backgrounds of applicants and employees for use in hiring, retention, promotion, and reassignment decisions. The publication also reminds employers to review local laws regarding background reports and information because some states and municipalities regulate the use of that information for employment purposes in addition to what federal law requires. The brochure also has many helpful links to other EEOC and FTC guidance in this area.
The second brochure, Background Checks: What Job Applicants and Employees Should Know is geared toward job applicants and employees.
The EEOC press release describes the joint guidance as “a unique opportunity for the agencies to work together to provide user-friendly technical assistance to our stakeholders.” Given that the EEOC has not been particularly successful in the cases it has brought against companies for allegedly using background checks improperly, it is likely that the agency also has decided that getting employers to voluntarily alter their practices by providing additional guidance to them may be a better enforcement strategy.
The U.S. Equal Employment Opportunity Commission has issued new, detailed guidelines for employers with respect to required accommodation of religious dress and grooming under Title VII of the Civil Rights Act. Businesses covered by Title VII must permit applicants and employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.
While the laws themselves are not new, the guide and fact sheet provide clear, practical advice for employers and offer several real-world examples from recent EEOC cases.
Religious Garb and Grooming in the Workplace: Rights and Responsibilities
Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities
The EEOC filed suit Friday in U.S. District Court for the Northern District of Illinois claiming that CVS Pharmacy violated Title VII by using separation agreements that allegedly limited the rights of employees to communicate with the agency, file charges, and participate in investigations (EEOC v. CVS Pharmacy Inc., Civil Action No. 1:14-CV-683). The EEOC specifically took issue with provisions in the separation agreements requiring employees to notify CVS if they receive a subpoena, deposition notice, interview request, or other inquiry from any investigator, attorney, or other third party; prohibiting employees from disparaging the company; prohibiting employees from disclosing confidential information; releasing “charges” against the company relating to “unlawful discrimination;” and agreeing not to sue the company. As one of the remedies requested, the EEOC wants the court to give employees who were subject to the agreements the opportunity to file a charge within three hundred days, basically restarting their limitations period. If the case moves forward, it will be interesting to see whether the court agrees with the EEOC’s position. After all, the employees who signed the agreements presumably did so precisely because they had no intention of taking any sort of legal action against CVS. Unfortunately, these types of cases often get settled early, allowing the EEOC to declare victory, but leaving employers uncertain about the law governing their agreements.
The EEOC’s efforts to clamp down on the use of criminal record information were dealt a significant setback on August 9, 2013 when the U.S. District Court of the District of Maryland threw out a case that had been brought against Freeman, a service provider for corporate events with offices around the country (EEOC v. Freeman [09-2573] Memorandum Opinion and Order 8.9.13). The case grew out of the EEOC’s longstanding concern that the indiscriminate use of criminal record information by employers to screen out applicants has a disparate impact and is therefore unlawful under Title VII. The EEOC believes employers using criminal record information must disregard arrest information and only use conviction information after considering the age of the offense, the seriousness of the offense, and the relationship of the offense to the position being sought. Applicants also must be given an opportunity, in the EEOC’s view, to explain or correct the information in their records before being rejected. However, in the Freeman case, the court said the EEOC had failed to show any disparate impact as a result of the company’s hiring practices. The court tore apart the EEOC’s expert reports, calling them “rife with analytical errors” and “laughable.” Even if evidence of a disparate impact had been present, the court said that the EEOC failed to link such evidence to any particular practice of Freeman and could not simply rely on the “collective results” of Freeman’s hiring process. “The story of the present action,” according to the court, was “that of a theory in search of facts to support it.” The Freeman decision is an embarrassing outcome for the EEOC that will undoubtedly make the agency’s enforcement activities in this area more difficult and provide a road map to victory for future defendants.