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EEOC's Background Check Guidance Blasted By US Chamber
Commerce and several House Republicans chided the U.S. Equal Employment Opportunity's regulation of employee background checks, saying the agency has embarked on misguided enforcement efforts and issued guidance that creates uncertainty for employers.
Testifying in front of the House Subcommittee on Workforce Protections, Camille Olson, a Seyfarth Shaw LLP partner and chairwoman of the Chamber of Commerce's equal employment opportunity policy subcommittee, told lawmakers that the EEOC's recent approach to investigations and enforcement of discrimination allegations has raised “serious concerns” among employers.
Olson specifically criticized the EEOC's investigations of bias claims, which she said often take too long and are inconsistent, and the conciliation process the agency is supposed to undertake before filing a suit in court. She also raised concerns about the EEOC's April 2012 guidance on making employment decisions based on criminal background screenings and the impact that guidance has had on employers.
“Employers find themselves between a rock and a hard place when it comes to determining whether to revise policies and practices to conform to new EEOC enforcement guidance,” Olson said in her written testimony. “The EEOC gives short shrift to common sense employer concerns — workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one’s workforce.”
Olson also referenced a number of poor results the EEOC has had in court, saying the agency has lost the three suits it has brought challenging employers' use of background checks, as well as other cases, such as a sexual harassment case against CRST Van Expedited Services Inc., in which a federal district court ordered the agency to pay $4.7 million for attorneys' fees and expenses.
Olson's critiques were picked up by some of the House panel's Republican members, who also took issue with the EEOC's 2012 background check guidance. Rep. Tim Walberg, R-Mich., for one, said the guidance hinders employers' ability to hire “a safe and responsible workforce,” especially for jobs that require workers to enter private homes or deal with children.
“In certain occupations, a background check of prospective employees is critical to public safety,” Walberg said.
Defending the EEOC's background check guidance and the agency's enforcement efforts more generally was Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, who said that “cherry-picking” through the EEOC's litigation record may not be the best way to evaluate its success in rooting out employment discrimination. She noted, for example, that the EEOC had won a number of their cases that made it to a jury trial.
“There is no question that the EEOC has been incredibly successful in redressing various forms of employment discrimination,” she said. “Despite the tremendous progress made in ensuring equal opportunity in the workplace, sadly our work in eliminating discrimination in the American workplace is far from over. The EEOC plays a critical role in the ongoing work of eradicating employment discrimination.”
Regarding background checks, Ifill noted that nothing in the EEOC's 2012 guidance prevents employers from screening employees and job applicants for a criminal record but that the guidelines were intended to help employers distinguish instances when a background check might be appropriate.
“The EEOC’s work on the guidance is not only commendable,” Ifill said, “it is also consistent with the growing national and bipartisan consensus that we need to rethink our criminal re-entry systems to ensure that millions of Americans who have a criminal record, but who have paid their debt to society and are qualified for work, are not unjustly denied the opportunity to reintegrate back into society.”
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