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Judy Greenwald

EEOC slammed over employee background check policy

June 12, 2014 - 3:05pm

EEOC Criminal Background Check Policy


The Equal Employment Opportunity Commission’s criminal background check policy was subjected to harsh criticism, including that it gives short shrift to employer concerns, by business groups and others during a House subcommittee meeting Tuesday.

The agency said in a statement it will continue to work with members of Congress on the issue.

The EEOC issued updated enforcement guidance on employers’ use of arrest and conviction records in April 2012 that called on firms to consider the nature and gravity of the offense when evaluating criminal backgrounds, the time that has elapsed since the offense and the nature of the potential job.

“The EEOC gives short shrift to common sense employer concerns — workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one’s workforce,” according to written testimony submitted by Camille A. Olson, a partner with law firm Seyfarth Shaw L.L.P., who spoke at the hearing on behalf of the Washington-based U.S. Chamber of Commerce.

Among other criticisms of the policy, Ms. Olson said the EEOC has provided little guidance on how an employer should weigh competing federal and state interests, in cases where Title VII of the Civil Rights Act of 1964 supersedes state law.

Also speaking at the hearing was Todd McCracken, president of the Washington-based National Small Business Association, who said in his written testimony the EEOC’s policy “is not guidance at all. It provides no meaningful rules about how to proceed. It is really just a threat that the EEOC may proceed against employers if, in hindsight, it decides it wants to do so.”

Mr. McCracken said also, “The complicated, confusing Guidance discourages small businesses from relying on [background] checks, and — in tandem with the EEOC’s stepped-up enforcement in this area — means that small businesses face greater legal exposure.”

Subcommittee chairman Tim Walberg, R-Mich., said, “It is time for EEOC to stop this nonsense, withdraw its flawed guidance, and ensure employers use the tools available to protect the men and women they serve.”

Lucia Bone, founder of the Flower Mound, Texas-based Sue Weaver C.A.U.S.E., Consumer Awareness of Unsafe Service Employment, discussed how her sister was raped and killed by a convicted felon working for a Florida department store who six months earlier been sent to her home to clear air ducts. No background check had been conducted, she said.

“In the last decade, we have witnessed a dramatic upsurge in federal, state and local laws mandating background checks in many areas, often to better screen those working with children or other vulnerable populations. Unfortunately, we must ask ourselves if the EEOC gets it,” she said.

Sherrilyn Ifill, president and director-counsel of the New York-based NAACP Legal Defense and Education Fund Inc. defended the EEOC, stating in her written testimony that its “recent actions around misuse of criminal background checks in employment highlight the ways in which the Commission is working to address and remedy discriminatory barriers that have disparate impact on protected classes.”

Asked to comment on the hearing, the EEOC said in a statement, “The EEOC’s litigation program is a critical part of the success of our mission to stop and remedy unlawful employment discrimination. By any measure, the EEOC has achieved a remarkable record at trial in recent years: We prevailed in 9 out of 10 jury trials in 2013. The agency also takes the concerns raised by members of Congress seriously, and will continue to work with them to ensure the nation’s workplaces are safe and free of discrimination.”

 



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