Background Screening Lawsuit Conclusion Reveals Challenges to EEOC Guidelines: CriminalBackgroundRecords.com Recommends Review of Background Screening Policies

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Recently the EEOC found its case against Freeman Company dismissed by a Maryland Federal Judge. In light of this setback CriminalBackgroundRecords.com highly recommends companies of all sizes review their background screening policy.

Criminal Background Records

Criminal Background Records

Despite this ruling, the EEOC will continue to enforce their Guidelines and may do so with greater veracity. Now, more than ever, is the time to review all background screening policies and work with a third-party screening company to remain compliant.

Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: “Despite this ruling, the EEOC will continue to enforce their Guidelines and may do so with greater veracity. Now, more than ever, is the time to review all background screening policies and work with a third-party screening company to remain compliant.”

On August 9, 2013, a Maryland based federal district court judge dismissed the case of Employment Opportunity Commission v Freeman Company.

Federal court dismisses EEOC Title VII disparate impact suit over alleged discriminatory background checks without trial. (Case No.: RWT 09cv2573 EEOC v Freeman). This loss represents a setback in the EEOC’s efforts to enforce the use of Criminal Histories as part of pre-employment practices as highlighted in EEOC guidelines.

The judge’s opinion of the suit highlights the flaws to the case that brought about the dismissal.

The district court granted summary judgment for the company based on its findings that the EEOC’s expert testimony (1) was unreliable and would not support a finding of disparate impact, and (2) failed to attribute any supposed disparate impact to a specific employment practice.” http://www.lexology.com/library/detail.aspx?g=15d3bb45-fe03-44eb-a69e-6f4342705d06

Disparate impact can be defined as:
Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex. http://www.businessdictionary.com/definition/disparate-impact.html

The results of the EEOC lawsuit dismissal by summary judgment suggest the use of criminal histories and background screening will be under scrutiny for the foreseeable future.

An article posted to http://www.BusinessInsurance.com (Aug. 25, 13)

If anything, the letter from the attorneys general and the Maryland judge's ruling “will cause (the EEOC) to become more focused on this issue,” said Pamela Q. Devata, a partner with Seyfarth Shaw L.L.P. in Chicago. http://www.businessinsurance.com/article/20130825/NEWS07/308259973?tags=%7C70%7C303

Almeida adds: “The EEOC’s efforts in regards to background screening and the potential for disparate impact will continue. But the recent setback in the Freeman case does not add clarity to the issue. Subsequently, utilizing a third-party background screener, one that stays up-to-date on all legal proceedings, policy changes, and legislation specific to background screening, is key.”

Employers remain in the tricky position of where and when to use criminal histories, and other specific reports, and in what specific circumstance can background screening reports be utilized.

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. http://www.lexology.com/library/detail.aspx?g=15d3bb45-fe03-44eb-a69e-6f4342705d06

Ultimately it is incumbent on any company to ensure background screening policies are clear, concise, and compliant, despite recent legal actions that may or may not have added any clearness to the use of background screening reports. Almeida states: “Two things are clear: 1, companies should have a thorough understanding of what documentation can be used in the hiring process, and, 2, they should utilize third-party background screening companies to remain compliant.”

CriminalBackgroundRecords.com is a third-party background screening company and can assist companies large and small with developing a fully compliant background screening policy.

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Dan Adams
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