Court Losses for EEOC Point to Confusion Over Fair and Lawful Use of Employment Background Checks; CriminalBackgroundRecords.com Urges Employers Use 3rd Party Screeners

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A recent decision against the Equal Employment Opportunity Commission (EEOC) by the Fourth Circuit Court, EEOC v Freeman (No. 13-2365), suggests confusion over the use of criminal records as a part of pre-employment screening. Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: “This setback for the EEOC will certainly force employers to remain cautious over the fair and legal use of background records and strongly points to a need to work with a third-party background screening company.”

Criminal Background Records

Criminal Background Records

“Whether or not the EEOC continues down the path of litigation is unknown. They are tasked with enforcement of the fair and legal use of background checks. What is clear, however, is the legal landscape for employers continues to be unclear.”

Recent legal proceedings in the Fourth Circuit Court may force the EEOC to reevaluate current legal pursuits regarding the fair and legal use of criminal histories as a part of typical pre-employment background screening.

From lawandtheworkplace.com (Feb. 23, 15):

“…in Equal Employment Opportunity Commission (“EEOC”) v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015), the Fourth Circuit affirmed the award of summary judgment against the EEOC in its suit alleging that the defendant’s use of credit and criminal background checks had a “disparate impact” on African-American job applicants in violation of Title VII of the Civil Rights Act of 1964… (1)

In early 2014 the EEOC released “Guidance” for fair and lawful use of criminal histories as related to Title VII of the Civil Rights Act. Subsequently, the EEOC has remained vigilant in pursuing companies via legal action as a means of enforcing the guidance. However, recent efforts have fallen short due to poor expert witness testimony.

From bluemaumau.org (Feb. 23, 15):

"The District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on "a theory in search of facts to support it," disregarding the EEOC's expert's report as "laughable" and "an egregious example of scientific dishonesty." (2)

A poor or ill-prepared witness is one thing but a bigger question remains: Will the EEOC continue to litigate companies over the use of background checks in pre-employment screening?

Almeida states: “Whether or not the EEOC continues down the path of litigation is unknown. They are tasked with enforcement of the fair and legal use of background checks. What is clear, however, is the legal landscape for employers continues to be unclear.”

Litigation for companies is an expensive proposition and the cost of defending against the allegations of alleged improprieties remains high. Additionally, ineffective litigation, such as the EEOC v Freeman summary, continues to confuse the use of background checks.

From lawandtheworkplace.com (Feb. 23, 15):

This latest defeat may cause the EEOC to reconsider its scrutiny of background checks and move to refocus on other enforcement priorities. Employers should nevertheless remain vigilant in keeping up with developing law and modify background check policies and procedures as needed. (3)

Third-party background screening companies are well versed in the fair and legal use of background checks and, specifically, criminal history checks, as a part of the employment screening process. Companies wishing to remain complaint with current state and federal law may be best served working with such a company.

Almeida states: “In light of the most recent legal decision it remains critical that companies large and small work with a third-party background screening company. It is a best practice and a practice that may help employers avoid costly legal defenses.

CriminalBackgroundRecords.com is a third-party background screening company poised to provide pre-employment background screening packages that will provide the information employers require in order to make hiring decisions. Further, CriminalBackgroundRecords.com is well versed in the fair and legal use of criminal histories as part of a background screening package.

Notes:

(1)    lawandtheworkplace.com/2015/02/fourth-circuit-affirms-summary-judgment-against-eeoc-in-background-check-suit/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original
(2)    bluemaumau.org/eeoc_blasted_%E2%80%9Cslipshod%E2%80%9D_work_%E2%80%9Cexpert_witness%E2%80%9D_background_check_lawsuit
(3)    lawandtheworkplace.com/2015/02/fourth-circuit-affirms-summary-judgment-against-eeoc-in-background-check-suit/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

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