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Les Rosen's Corner EEOC Must Testify On Own Use Of Criminal Background Checks
September 01, 2012 posted by Steve Brownstein
A federal district Court in Maryland has ruled that an employer sued by the Equal Employment Opportunity Commission (EEOC) for alleged discriminatory use of criminal background checks and credit histories in hiring may compel the EEOC the testify regarding the agency's own use of criminal records and credit information for employment screening. The ruling EEOC v. Freeman, D. Md., No. 09-2573, 8/14/12 is here: http://op.bna.com/dlrcases.nsf/id/kmgn-8x7jwz/$File/freemanprotect.pdf.
In September 2009, the EEOC - the agency that enforces federal laws prohibiting employment discrimination - sued the defendant, a corporate events planner, alleging it systematically engaged in a "pattern or practice" of unlawful discrimination against black, Hispanic, and male job applicants under Title VII of the 1964 Civil Rights Act by using criminal records and credit histories as hiring criteria.
The EEOC opposed the deposition on the basis that the information was not relevant and that a deposition would be "unduly burdensome." According to the ruling by U.S. Magistrate Judge Charles B. Day on August 14, 2012, the deposition regarding the EEOC's hiring practices could produce information relevant to the defense that its consideration criminal backgrounds and credit histories is job-related and consistent with business necessity.
Day wrote if the EEOC "uses hiring practices similar" to those used by the defendant, "this fact may show the appropriateness of those practices," since the EEOC is "the agency fighting unfair hiring practices."
The court added the EEOC and the defendant "consider similar factors" in evaluating job applicants with criminal backgrounds, including the nature of the criminal offense, the seriousness of the conduct, and the particular job to be filled. These three factors are part of the updated EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 available at:
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
USCIS Tells Employers to Use Current Employment Eligibility Verification Form I-9 Despite August 31 Expiration Date.
The U.S. Citizenship and Immigration Services (USCIS) - the government agency that oversees lawful immigration to the United States - has announced that, until further notice, employers in the United States should continue to use the current version the Employment Eligibility Verification Form I-9 (Rev. 08/07/09) even after its Office of Management and Budget (OMB) control number expiration date of August 31, 2012.
The bulletin sent by the USCIS for the announcement is available here: http://content.govdelivery.com/bulletins/gd/USDHSCIS-4e551e.
