Update! EEOC Heads to Court… Again

Attorneys representing the Equal Employment Opportunity Commission (EEOC) had a busy week in court in early September. The government agency that oversees the laws, rules and regulations of background checks was dealing with two cases, that, as we’ve previously reported on the ActiveCare Blog, may have major implications on the EEOC’s credibility and the screening industry.

In one case, the government agency got a win when it settled a criminal background check lawsuit against BMW for $1.6 million. In another case, however, a federal judge dealt the EEOC a significant blow by ordering it to the pay attorneys’ fees totaling nearly a million bucks for overly aggressive tactics.

Let’s examine the backgrounds, rulings and implications of each case.

BMW

Background – The complaint was originally filed in 2013 after the EEOC raised concerns about how background checks were performed on 69 African American employees of a sub-contractor used by BMW at one of its South Carolina plants. The EEOC
took issue with BMW’s response to background checks that returned with red-flagged criminal convictions. In all, BMW revoked access to its facility, and thus terminated employment with, 88 workers after learning of their criminal pasts.

BMW’s employment policy excludes anyone who has been convicted of murder, assault and battery, rape, child abuse, domestic violence, weapons violations or the manufacture or distribution of drugs. The policy makes no distinction between felony or misdemeanor convictions.

Ruling – The biggest issue here is that BMW used a blanket policy for eliminating or terminating candidates with certain types of criminal convictions. The EEOC’s guidance, though, is explicit that blanket policies are not allowed. Instead, employers need to review each employee on a case-by-case basis and that the job needs to be weighed against the type of crime.

Implications – It’s interesting to note that EEOC guidance is merely that, guidance, and is not law. The judge in this case made clear, though, that blanket policies will be scrutinized. It may be best if employers steer clear of these policies.

FREEMAN

Background – Freeman is a live event services provider. In 2009, the EEOC filed a lawsuit against Freeman based on a woman who claimed she didn’t get hired after Freeman pulled her credit history. The EEOC claimed that using applicants’ credit history in the application process had a disparate impact on African-Americans, and that using applicants’ criminal histories had a disproportionate impact on African-American men. The case, which Freeman ultimately won, dragged on for roughly four years even after a lower court had dismissed the EEOC’s claim.


Ruling –
This one got nasty – especially for the EEOC. A judge accused the EEOC statistician of being “an egregious example of scientific dishonesty.” The stats guy was called upon to show statistical evidence of racially disparate impact but, in fact, ended up being accused of cherry-picking stats to support the EEOC’s cause. In last week’s ruling, the court stated that the EEOC’s “inexcusably slipshod” evidence should have informed it that “Freeman held a royal flush, while the EEOC held nothing,” according to The National Law Review.

Implications – The takeaway for employers is that the EEOC isn’t always a winner, despite its aggressive tactics. This case is also proof that the EEOC will go to bat for something it feels is wrong, so employers need to perform an incredible amount of due diligence in examining their own hiring procedures, and criminal and credit background checks.

Active Screening wants to help employers succeed at implementing a solid, and legal, background check process. We have compiled a compliance checklist for employers to use as a reference. 

Compliance Checklist:

1 Have an updated copy of the Fair Credit Reporting Act to reference.

2 Know the definitions the FCRA uses.

3 Provide potential employees with a clear disclosure.

4 Identify self and purpose for screening.

5 Make sure you have written consent from applicant.

6 Do not use alternative methods for screening, i.e. Google or social media.

7 Follow procedures to ensure report accuracy.

8 Re-verify results.

9 Perform an individual assessment before making a hiring decision

Employers taking adverse action must:

1 Provide oral, written or electronic notice to applicant about the Credit Reporting Agency.

2 Must include: name, address and number of the CRA that furnished the report.

3 Must also include: A statement that CRA had no influence on adverse action.

4 Provide notice that applicant may obtain report and dispute accuracy of report.

Click here if you prefer to download the list and print it out.

If you want to read the EEOC’s compliance guidelines yourself, check out this page on our resources page. You’ll get to read the joint publication by the Federal Trade Commission and the EEOC. 

Looking for more advice? Our Active Screening team members are always available. Reach us at 1-800-319-5580.

This entry was posted in Background Screening, Criminal Records, General, Human Resources, Industry Solutions, News and tagged , , , , , , , , , , , , , by Patricia Carlson. Bookmark the permalink.

Patricia Carlson is a content writer who specializes in B2C and B2B inbound marketing. She blogs regularly for clients about the background screening and finance industries, and generates newsletters, white papers and email campaigns for a variety of businesses. Patricia also produces a heavy rotation of editorial material for home design, law enforcement, and family magazines. She’s been writing professionally for more than a dozen years, and for Active Screening for more than two of those. Check out LinkedIn for a roster of Patricia’s clients and links to published works. When she’s not interviewing sources or researching trends, she’s living a fast-paced Florida life questioning the antics of her two young children, partner and mischievous cat. Patricia loves to talk tennis and TV on Twitter – give her a shout @pattycfreelance.

 
        
Active ScreeningBarbara S.
Healthcare Industry

"Here at Holland Hospital, we have been extremely pleased with Active Screening. The report results come back quickly, usually within 24 hours or less.  The staff at Active Screening is easy accessible, knowledgeable and responds to our questions promptly."

Active ScreeningLynn C. Staffing Industry

"Benton Mobley has been and remains my Main point of contact at Active Screening from the beginning; so aside from the comfort of dealing with the same person all these years, there is the most important fact of all;  customer satisfaction. Benton knows the business like the back of his hand; and that is what we need in our fast paced industry of staffing. He is the all-time BEST!  MY employer, Leslie, believes in the notion that great service deserves to be rewarded, so we are here for the duration.We get immediate and personalized attention for any and all concerns we need addressed, and in the staffing industry, this is vital."

Active ScreeningCayce R. Education Industry

"My experience working with Active Screening for our background check process has been very positive.  The reports are almost always completed in a very timely fashion. The information reported appears to be very thorough and accurate.  On the rare occasions that we have questions or problems, the customer service team is always very quick to respond and resolve the issue.  Overall, I am very pleased with the service I receive from Active Screening."

Active ScreeningCraig H. Staffing Industry

"Your customer service is excellent.  The turn around time on background checks is quite fast.  Excellent work.  I haven't had a single problem."

Active ScreeningJackie C. Education Industry

"I wanted to thank you and your staff for being so patient and working so diligently with the Human Resources staff during our recent endeavor to process all of our work study students through background screenings.  We have never had to process so many requests within such a short period of time before, but thanks to you and your staff we made it. Again thank you, we made a good choice in selecting Active Screening."

Active ScreeningLindsey W.  Financial Industry

"I wanted to share my appreciation for your wonderful service...switching background screening companies could have been a stressful task, but your company made the transition seamless. Your website was extremely easy to navigate and the turn around time has been great. I appreciate when information is missing or entered incorrectly during ordering, your company notifies me right away to ensure that my error does not hold the reports results, causing us a delay in hiring an individual...Active Screening has been great to us and I would definitely refer them to others."

Active ScreeningTerry S. Property Management

"Working with Active Screening over the last year and half has been a wonderful experience. They deliver fast and informative results at the best price. Their level of professionalism and the speed they respond to our issues is a benefit that any company can value from. I would highly recommend using Active Screening and their amazing team."

Active ScreeningYulesis D.  Staffing Industry

“Interactive Response Technologies (IRT) has more than 2,000 employees at multiple locations across the United States. IRT has been using Active Screening to conduct criminal background checks since 2006. During this time, Active Screening has consistently returned accurate reports, usually with less than 48 hours turnaround. If there are any problems or inconsistencies with the reports, their staff has called to notify us so that we can attempt to rectify the situation. The staff at Active Screening is always courteous and congenial over the phone. In our opinion, Active Screening is outstanding.”

Active ScreeningAndy N. Software Provider

 "Active Screening has helped us screen our applicants in record time for more than two years.... we are very impressed with the professionalism and speed with which their service team responds to our questions. They understand our needs and are a pleasure to work with. I highly recommend them."

Active ScreeningCassie J. Staffing Industry

"The Active Screening team is very informative; they provided a complete consultation on all the services, so I understood what I needed, and saved me hours and hours of my time learning the various services. Their reputation, as being on the cutting edge of employment screening best practices, certainly held true in this instance. The expertise they brought to the table was invaluable to our understanding of our applicants backgrounds. I highly recommend Active Screening to anyone with the task of screening large numbers of applicants and needing reliable customer support."

Active Screening

With over 20 years of law enforcement experience I can attest to the fact that the strongest predictor of future criminal behavior is a person’s criminal history. As the manager of campus safety at my church, I depend on Active Screening to provide a thorough assessment of every criminal history background check we request. For more than 3 years, Active Screening has been faithful to this task with timely, accurate and reliable service.

Active Screening

We have benefited from knowing that we are not exposing the communities we work with or ourselves to unnecessary risk. We continue to have a perfect record in that we have never had a serious incident with a trip participant causing harm or acting inappropriately with any community member or fellow team member- thank goodness!

Active Screening

I would highly recommend any association or organization who conducts background checks to use Active Screening. In addition to my involvement with WAHA, I am an officer in a corporation with over 500 employees who provide treatment, mental health, and correctional services for children and adolescents. Our company is mandated by law to do comprehensive background searches and I can say with the utmost sincerity that Active Screening product rivals that of any government or other private sector process.

Active Screening

We have used Active Screening and their solution VERITY to screen all our coaches and volunteers working with youth. The online system gives us an easy and cost-effective solution to collecting forms and payments from our applicants...and we simply login to view the results of who passed or failed. It's so easy....thank you Active Screening.