Congress is showing signs of life in the constant fight for employers to conduct reasonable background checks.
Representative Tim Walberg, R, Mich., chairman of the House Subcommittee on Workforce Protections, held the Equal Employment Opportunity Commission’s feet to the fire in a hearing on Sept. 17, 2014. The hearing focused on three recently introduced bills aimed to increase the accountability and transparency of the EEOC and to offer employers limited protections in the use of criminal history.
The proposed legislation
The proposed legislation discussed at the hearing included
- H.R. 4959, the EEOC Transparency and Accountability Act, which would require the EEOC to maintain up-to-date information on its website regarding charges and actions brought by the EEOC;
- H.R. 5422, Litigation Oversight Act of 2014, which would require the EEOC to approve by a majority vote to begin or intervene in litigation involving multiple plaintiffs or systemic discrimination; and,
- H.R. 5423, Certainty in Enforcement Act of 2014, which would protect employers from EEOC action in cases that specifically involve criminal background checks required by state or local law.
Criticism of the EEOC
In his opening remarks, Walberg sharply criticized the EEOC, whose mission is to end discrimination in the workplace:
Unfortunately in recent years, the EEOC has shifted its focus away from that vital mission. Instead, it has spent a great deal of time and resources advancing a deeply flawed enforcement and regulatory agenda.
Charges are being filed in federal court with little to no evidence of wrongdoing. Federal judges have harshly and appropriately criticized the agency for its shoddy legal work. Not only is the EEOC dropping the ball with its misguided enforcement priorities, it is also pursuing a regulatory scheme that is making it more difficult for employers to protect employees and consumers.
Quite simply, the agency’s edict restricting the use of criminal background checks is putting people in harm’s way, including women and children.”
EEOC criminal guidance under scrutiny
Walberg was referring to the EEOC’s 2012 criminal history guidance (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.), which warns that the broad use of criminal background checks in making hiring decisions may constitute illegal employment discrimination.
The guidance has been widely criticized for putting many employers squarely between a rock and a hard place.
As written, the guidance makes it difficult to defend the use of criminal checks, particularly when employers are subject to state laws requiring the use of criminal history to protect children, the elderly or other vulnerable populations.
One of the proposed bills, HR 5423, would grant employers a safe harbor from enforcement if a criminal background check is required by state or local law. The other bills would require the agency to maintain greater transparency by posting case information on its website, and also require commissioners to vote before filing systemic cases involving disparate impact claims.
The courts have not been very receptive to the EEOC’s claims of discrimination under “disparate impact” theory. Notably, in EEOC v. The Freeman Cos., Judge Roger Titus of the U.S. District Court for the District of Maryland commented that the EEOC’s expert was “laughable” and the report was “based on unreliable data”; “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; and “an egregious example of scientific dishonesty.”
We saw similar outcomes in EEOC v. Kaplan, and EEOC v. Peoplemark, where the EEOC’s aggressive class action cases were dismissed due to a lack of evidence.
But with litigation, even when you win, you lose. The cost of defending systemic investigations and the resulting litigation is enough to drive most employers out of business.
In summary
It’s encouraging to see members of Congress taking steps to hold the EEOC accountable. Congress is questioning the effectiveness of the EEOC’s enforcement policies rather than simply letting the guidance continue to play out in the courts.
A few simple reforms could help level the playing field for employers and keep the EEOC honest. Lawmakers are finally responding to small businesses and organizations that are trying to do the right thing, but are caught in the cross-hairs of conflicting regulations and policy statements.
Rep. Walberg noted that 19 stakeholders representing a wide variety of constituents signed a letter supporting all three bills, which included the National Association of Professional Background Screeners (NAPBS), SHRM, and other professional, health care, retail and food service organizations.
The proposed legislation, while not perfect, is a step in the right direction.
This was originally published on the EmployeeScreen IQ blog. EmployeeScreen IQ is not a law firm, and the contents of this article are not intended to be a substitute for legal advice.