EEOC Settlement in Criminal Background Checks Record-Keeping Suit

Posted: January 10, 2017

On December 16, the Equal Employment Opportunity Commission (EEOC) announced a settlement with a nationwide provider of janitorial and facilities management services. The EEOC previously filed suit in July 2015, alleging the employer failed to uphold its federal record-keeping requirements as mandated by Title VII of the Civil Rights Act of 1964 and 29 CFR part 1607 of the Code of Federal Regulations. In particular, the EEOC claimed the employer failed to maintain records related to criminal background checks and criminal history assessments that the employer conducts as part of its hiring process. According to the EEOC, the purpose of maintaining records of the criminal history assessments is to track and determine the impact that the use of criminal history has on a particular race, sex or ethnic group. As part of the settlement, the employer has agreed to modify its record-keeping practices as it relates to criminal background check use. Specifically, the employer “must first make and keep records identifying the person’s gender, race, and ethnicity” if it intends to use criminal history information in a hiring decision. Further, once the criminal history information has been reviewed, the employer must also “keep records of the criminal history information, the results of any criminal history assessment, and any employment decision made based on any criminal history assessment.” Finally, the employer must retain records of any complaints related to its use of criminal history information including discrimination complaints. Employers should review their record-keeping practices in light of this recent settlement in conjunction with qualified legal counsel.