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Your Employee Matters


By December 1, 2009No Comments

The June 2009 Employment Law Bulletin alerted readers to the EEOC’s focus on criminal background checks. On September 30, 2009, the EEOC sued an employer for using criminal background checks. In EEOC v. Freeman (D. MD), the commission alleged that the Freeman Companies disqualified applicants based on either their credit history or arrest or conviction records. The EEOC claims that the use of these background checks has a discriminatory impact based on race, national origin, and gender, because they tended to disqualify African-American, Hispanic, and male applicants at a substantially higher rate than other classes. The commission also argues that the credit and background checks “are not job related and consistent with business necessity” and that “appropriate, less discriminatory alternative selection procedures” are available to the employer. Finally, the EEOC claims that the use of the background check and credit histories deprive “African-American, Hispanic, and male job applicants of equal employment opportunities and otherwise adversely affect their status as applicants because of their race, national origin and sex,” by discouraging them from even applying for jobs.

Note that the EEOC’s case is not based on whether an employer has the legal right to use credit and criminal history checks. Rather, it argues that the use of such information has a discriminatory impact based on race, national origin, and gender, and thus violates Title VII of the Equal Employment Opportunity Act unless the employer can show the business necessity of using this information and that less discriminatory alternatives are unavailable. This lawsuit could have a substantial impact on employer hiring practices nationwide. We’ll monitor the case and apprise you of any developments.

Article courtesy of Worklaw® firm Lehr Middlebrooks and Vreeland (