A magistrate judge in the U.S. District Court for the District of Oregon recently made findings and recommendations to dismiss a purported class action against Kroger subsidiary Fred Meyer. The suit alleges that the retailer’s background check process for prospective employees violates the Fair Credit Reporting Act by both failing to properly disclose that a report will be run, and failing to comply with the statute’s procedural requirements before taking adverse action against an applicant.
The New York City Commission on Human Rights recently amended its rules to establish certain definitions and procedures applying the Fair Chance Act. The Act makes it unlawful to discriminate against job applicants and employees on the basis of criminal history, and is particularly important for employers for two reasons: (1) it applies not only to criminal background checks performed by third-party vendors but also to checks performed entirely by the company, and (2) out-of-state non-employers may be held liable for aiding and abetting violations of the Act. For more on this latter point, read our prior post on the New York Court of Appeals opinion in Griffin v. Sirva, Inc.
On February 20, 2015, a unanimous panel of the Fourth Circuit affirmed the exclusion of expert testimony by EEOC expert Kevin Murphy and the grant of summary judgment against the EEOC in its suit challenging Freeman’s use of credit and criminal background checks in the hiring process. Although the Fourth Circuit’s decision expressed no opinion on the merits of the EEOC’s claim, the court found summary judgment was justified because the “sheer number of mistakes and omissions” in Murphy’s analysis rendered it unreliable. While the court’s published opinion cited the “alarming number” of “mind-boggling errors” by Murphy, it was a concurring opinion by Judge Agee (which is actually longer than the unanimous decision of the court) that more thoroughly and severely criticized Murphy’s expert testimony and the EEOC’s “disappointing litigation conduct.” According to Judge Agee, Murphy’s work was “riddled with fundamental errors, mistakes, and misrepresentations,” but even more disquieting was what appears to be a “pattern of suspect work from Murphy,” and the EEOC’s continued championing of Murphy “[d]espite [his] record of slipshod work, faulty analysis, and statistical sleight of hand.” Judge Agee concluded:
The EEOC wields significant power… The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress. … The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking. It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.
The U.S. Supreme Court is considering a case that could have important implications to disparate impact analysis, including on criminal background checks. The case also foreshadows further challenges from the Texas Attorney General to aggressive positions taken by federal enforcement agencies in regard to disparate impact. The case is Texas Department of Housing & Community Affairs, et al., v. The Inclusive Communities Project, Inc., Case No. 13-1371, and is being argued by the Texas Attorney General.
Discover how the use of criminal background checks in the hiring process is creating an increasing exposure to liability. The Equal Employment Opportunity Commission (EEOC) is aggressively pursuing this issue to ensure the practice does not have a disparate impact on minority applicants. Additionally, plaintiffs’ class action attorneys are pursuing employers nationwide for failing to conform their background check process with the dictates and protections of the federal Fair Credit Reporting Act. This webinar will highlight lessons learned in the trenches, and give insights on how to properly handle the sensitive use of criminal background check information.
On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.” Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications. “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position. If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.
Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history.
On April 9, 2014, the Sixth Circuit of Appeals not only affirmed summary judgment in EEOC v. Kaplan Higher Education Corp., et al. but also chastised the EEOC for applying a flawed methodology in its attempts to prove that using credit checks as a pre-employment screen had an unlawful disparate impact against African-American applicants.
On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions. The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014. The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts, Minnesota, and Rhode Island) who do not allow employers to ask about prior criminal convictions on initial job applications, and similar legislation is currently pending at state and local levels around the United States. We present an overview of the San Francisco Fair Chance Ordinance and recommended best practices for compliance here.
On March 10, 2014, the Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance regarding the use of background checks. The FTC, which enforces the Fair Credit Reporting Act, monitors compliance with how background checks are conducted. The EEOC, which enforces federal laws against discrimination, seeks to ensure that the use of background checks does not disparately impact protected groups.