By Pamela Q. Devata, Gerald L. Maatman Jr., and Howard M. Wexler

The EEOC has come under fire from Courts, State Attorney Generals, and even the entire State of Texas because of its guidance document regarding use of criminal background checks as hiring screens.

As we previously discussed, the U.S. Commission on Civil Rights (“USCCR”) convened a hearing in December 2012 to examine the EEOC’s criminal history guidance in order to prepare a report to the President and Congress on the EEOC’s action. On August 16, 2013, the USCCR voted unanimously to approve sections of a final draft report. Up until February 20, 2014, the draft report had not been made public by the USCCR. Well, it is finally out and after months of consideration, the report does not contain any findings, conclusions or recommendations!  Indeed, the report is simply a compilation of testimony and comments related to the USCCR’s December 2012 hearing as well as some additional remarks by individual Commissioners speaking for themselves.  However, the Commissioners could not arrive at any consensus on the topic.  

To date, the EEOC has lost three major cases in this area, but none of those courts actually reached the merits of the EEOC’s underlying theory. The EEOC lost in Peoplemark (here and here) because it pursued a violation based on a companywide policy that did not exist. The EEOC lost in Kaplan (here) because it failed to show a prima facie case of disparate impact and, at least in part, because the EEOC maintained a credit and criminal background check policy for its own employees. Finally, the EEOC lost in Freeman (here) because its expert analyzed data from the wrong period of time. The EEOC is still in active litigation alleging that employers’ criminal background policies have a disparate impact on minorities and as such, violate Title VII.

Where the report goes from here is anyone’s guess.  The USCCR lacks enforcement responsibilities and only has the authority to refer complaints of discrimination to federal, state or local entities with enforcement power.  These types of Reports are generally issued for the purpose of setting out the results of Civil Rights Commission inquiries and have no binding effect on the regulated community.

Accordingly, while employers will likely continue to face the unenviable task of deciding whether to screen for applicants’ criminal histories and face the risk of an EEOC enforcement action or whether to hire individuals with criminal backgrounds and face civil lawsuits alleging, for example, negligent hiring claims, the continued failure of the EEOC or private litigants to succeed in these lawsuits leaves this an area of continued uncertainty. 

Readers can also find this post on our Workplace Class Action blog here.