EEOC Sues Employer, Alleges Criminal History Recordkeeping Failures

Posted: July 14, 2015

As announced in a press release on July 10, the Equal Employment Opportunity Commission (EEOC) filed suit against a nationwide provider of janitorial and facilities management services. As alleged in the suit, the employer failed to uphold its federal recordkeeping requirements as mandated by Title VII of the Civil Rights Act of 1964 and 29 CFR part 1607 of the Code of Federal Regulations. The case is Equal Employment Opportunity Commission v. Crothall Services Group, Inc., Civil Action No. 2:15-cv-03812-AB. Specifically, 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, which the EEOC as a “test or selection procedure”. 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. This recent complaint stems from an earlier charge filed by the EEOC. In 2010, the EEOC alleged the employer’s use of criminal background checks resulted in an unlawful disparate impact on black, Hispanic and male applicants and employees. Following the original complaint, the EEOC subpoenaed the employer’s records in 2013 seeking records disclosing the impact the criminal background checks had on employment opportunities. The subpoena led to the current complaint after the EEOC claimed the employer did not comply with federal recordkeeping requirements. The EEOC has remained active in its pursuit of cases against employers for the use of criminal history information in employment decisions. Generally, past lawsuits allege that the employer’s use of criminal (and sometimes credit) information leads to disparate impact discrimination when a person “demonstrates an employer’s neutral policy or practice has the effect of disproportionately screening out a [protected] group” and does not connect the policy with job-relatedness or necessity. Currently the EEOC has two ongoing high-profile cases versus BMW Manufacturing and Dollar General. These cases have been tied up in discovery with BMW and Dollar General both seeking more information about the EEOC’s own internal hiring practices and policies. Employers should remain diligent in tracking EEOC activity as it relates to the criminal and credit history in hiring decisions. Particularly, employers should follow the EEOC’s updated 2012 criminal records guidance which recommends employers weigh three factors when assessing whether the existence of a criminal record is sufficient for job exclusion: the nature and gravity of the offence or conduct, the time that has passed since the offence or conduct and the nature of the job held or sought. Further, the EEOC has recommended that employers conduct “targeted assessments” and consider an “individualized assessment” where appropriate. While not thoroughly defined in the Guidance or elsewhere, an individualized assessment generally involves the employer speaking with the applicant, notifying him/her that he/she will not be considered for the position based on the criminal history and allowing the applicant to have the opportunity to explain and provide further information.