How are you doing with those New Year’s resolutions? We mean the work ones, not those “lose-weight-eat-healthy-get-more-exercise” ones.
If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.
Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.
This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.
Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.
“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.
So why should this prompt a new year’s review of hiring practices?
Explains Arthur J. Cohen, former chair of the National Association of Professional Background Screeners: “The third circuit held that the concept of business necessity, which is a defense to Title VII (of the Civil Rights Act of 1964, the basis of many employment discrimination cases), means there must be a manifest relationship between the objective of the screening policy and the required job performance.”
This means that it’s not enough to simply adopt a policy against hiring felons, say, or someone with a poor credit history or with a less-than-honorable military discharge. Instead, says Merrily Archer, a former attorney with the EEOC who is now in private practice with Fisher & Phillips in Denver, employers need to ask “Is there any nexus between the criterion and the job we are hiring them to do?”
So, in an example she discussed, a hospital policy against hiring janitors who have a conviction in the past five years for burglary, robbery, larceny, grand theft, or other crime of honesty might past muster because janitors have master keys to offices and rooms where valuables are stored. However, a blanket policy against hiring anyone with a conviction for any reason however distant, might be inviting a lawsuit.
While the policy seems logical enough, is it really? Why pick five years and not four or two or seven?
Cohen, himself an attorney and vice president of operations and general counsel of background screener Concorde, Inc., counsels that employers “ought to be considering how they would articulate, if they are ever asked, why they chose the policy they did, on what research was the policy based, and why was it structured the way it was.”
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The basis for a particular need not be unassailable, if that were even possible. Instead, said the federal court in the SEPTA decision, “We require that employers show that a discriminatory hiring policy accurately — but not perfectly — ascertains an applicant’s ability to perform successfully the job in question.”
How did SEPTA, the employer, show that? By bringing in a criminologist to testify to recidivism. Had El’s attorneys brought in one of their own, many lawyers including most of the labor lawyers we spoke with, suspect the appeals court would have decided differently and sent the case back for a jury trial.
If only for that reason you should have some data to support your employment policy.
“What makes the SEPTA case so noteworthy in my opinion is that the indication is that the participation of a criminologist has relevance to the preparation of a policy involving a review of the criminal records,” says Cohen says.
Or to put it another way, if an unsuccessful candidate sues says Cohen, “By all means this could turn into a war of the experts.”
So as you go about reviewing your pre-employment screening procedures it would be wisest to test the policies in two ways: Against the EEOC’s own guidelines for criminal convictions and against the SEPTA court’s declaration that “discriminatory hiring policies accurately but not perfectly distinguish between applicants’ ability to perform successfully the job in question.”
One more thing to consider: Congress has shown an inclination recently to expand protection against discrimination. In September it passed a law that expressly overrode the Supreme Court’s narrow reading of some of the protections of the Americans With Disabilities Act. And the new Congress is expected to approve two measures expanding the right of workers to sue for past discriminatory acts and limits an employer’s defenses to equal pay actions.
As attorney Archer suggests, “Better buckle your seatbelt and get a good attorney.”