Do pre-employment criminal background checks discriminate against minorities? Not according to the U.S. District Court for the District of Maryland.
Last week, the U.S. District Court for the District of Maryland ruled that the Equal Employment Opportunity Commission failed to show that a nationwide event planning company’s use of criminal background and credit-checks resulted in a disparate impact against black and make job applicants.
In a stunning rebuke to the controversial Enforcement Guidance Regarding Consideration of Arrest and Conviction Records in Employment Decisions, the District Court hammered the EEOC’s evidence, dismissing its analyses as “flawed,” “skewed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty.” Specifically, the court determined that one EEOC expert’s analysis focused on an unrepresentative section of applicants to fit the commission’s theory that pre-hire employee criminal background checks have a disparate impact on minorities.
EEOC: Where’s the Evidence?
The reports furnished by the EEOC were not the only thing that concerned the court; the EEOC also failed to meet its burden of raising triable disparate impact claims because “the commission did not identify a specific employment practice responsible for the alleged impact.” Citing Wards Cove Packing Co. v. Atonio, the court held that “under Title VII, it is not enough to show that ‘in general’ the collective results of a hiring process cause disparate impact. Statistical analysis must isolate and identify the discrete element in the hiring process that produces the discriminatory outcome.”
While the EEOC is still considering an appeal, the court’s ruling was clear: “it is simply not enough to demonstrate that criminal history or credit information has been used,” to advance a discrimination claim based on disparate impact. Granted, the issue of criminal background checks and disparate impact claims remains far from settled, last week’s U.S. District Court ruling should offer encouragement to employers drowning in red tape and over-zealous regulation.Read More
Last month, President Obama signed into law an amendment to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This amendment, the “Veterans Opportunity to Work (VOW) to Hire Heroes Act,” allows USERRA to recognize claims of hostile work environment on account of an individual’s military status, making it easier for employees to sue their employer for discrimination based on their military status.
In addition to increasing educational opportunities, job counseling, and transition and placement assistance available to veterans, this bipartisan legislation creates the same standard for hostile environment claims on account of military status as that are required for Title VII and other employment discrimination claims. Consequently, employers will find it more difficult to end USERRA claims quickly—even where the employee has not suffered a tangible loss.
America’s military is the finest the world has ever known. The women and men of the U.S. armed forces are true heroes, and deserve recognition and respect for the sacrifices they’ve made for this country. So while this blog might not always agree with President Obama’s labor and economic policies, we’re behind the President’s recent decision to amend USERRA. However, as is so often the case with this Administration’s policies, the devil’s in the details, and an important question is still to be answered: Will this new law be used to protect members of the U.S. military from anti-military bias? Or will it function as yet another tool to intimidate employers?
Bottom Line for Employers
Given this expansion of USERRA protections, employers should ensure that their EEO policies include “military and veteran status” and that all supervisory personnel are aware of USERRA’s new parameters. Additionally, companies should consider including language prohibiting harassment on the basis of military and/or veteran status in their policies against harassment in the workplace.
–Meredith Diette represents public and private employers before state and federal courts and administrative agencies on a variety of employment-related matters such as claims of discrimination, wrongful discharge, retaliation, sexual harassment, unemployment, and employee discipline.Read More