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Add ‘Review Background Screening’ To Your List of Resolutions

by
John Zappe
Jan 7, 2009, 5:21 am ET

How are you doing with those New Year’s resolutions? We mean the work ones, not those “lose-weight-eat-healthy-get-more-exercise” ones.

If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.

Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.

This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.

Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.

“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.

So why should this prompt a new year’s review of hiring practices?

Arthur Cohen

Explains Arthur J. Cohen, former chair of the National Association of Professional Background Screeners: “The third circuit held that the concept of business necessity, which is a defense to Title VII (of the Civil Rights Act of 1964, the basis of many employment discrimination cases), means there must be a manifest relationship between the objective of the screening policy and the required job performance.”

This means that it’s not enough to simply adopt a policy against hiring felons, say, or someone with a poor credit history or with a less-than-honorable military discharge. Instead, says Merrily Archer, a former attorney with the EEOC who is now in private practice with Fisher & Phillips in Denver, employers need to ask “Is there any nexus between the criterion and the job we are hiring them to do?”

Merrily Archer

Merrily Archer

So, in an example she discussed, a hospital policy against hiring janitors who have a conviction in the past five years for burglary, robbery, larceny, grand theft, or other crime of honesty might past muster because janitors have master keys to offices and rooms where valuables are stored. However, a blanket policy against hiring anyone with a conviction for any reason however distant, might be inviting a lawsuit.

While the policy seems logical enough, is it really? Why pick five years and not four or two or seven?

Cohen, himself an attorney and vice president of operations and general counsel of background screener Concorde, Inc., counsels that employers “ought to be considering how they would articulate, if they are ever asked, why they chose the policy they did, on what research was the policy based, and why was it structured the way it was.”

The basis for a particular need not be unassailable, if that were even possible. Instead, said the federal court in the SEPTA decision, “We require that employers show that a discriminatory hiring policy accurately — but not perfectly — ascertains an applicant’s ability to perform successfully the job in question.”

How did SEPTA, the employer, show that? By bringing in a criminologist to testify to recidivism. Had El’s attorneys brought in one of their own, many lawyers including most of the labor lawyers we spoke with, suspect the appeals court would have decided differently and sent the case back for a jury trial.

If only for that reason you should have some data to support your employment policy.

“What makes the SEPTA case so noteworthy in my opinion is that the indication is that the participation of a criminologist has relevance to the preparation of a policy involving a review of the criminal records,” says Cohen says.

Or to put it another way, if an unsuccessful candidate sues says Cohen, “By all means this could turn into a war of the experts.”

So as you go about reviewing your pre-employment screening procedures it would be wisest to test the policies in two ways: Against the EEOC’s own guidelines for criminal convictions and against the SEPTA court’s declaration that “discriminatory hiring policies accurately but not perfectly distinguish between applicants’ ability to perform successfully the job in question.”

One more thing to consider: Congress has shown an inclination recently to expand protection against discrimination. In September it passed a law that expressly overrode the Supreme Court’s narrow reading of some of the protections of the Americans With Disabilities ActAnd the new Congress is expected to approve two measures expanding the right of workers to sue for past discriminatory acts and limits an employer’s defenses to equal pay actions.

As attorney Archer suggests, “Better buckle your seatbelt and get a good attorney.”

This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.

  1. Wayne Wauters

    I have a question. If the government can take away the right of a voter to vote because they have a felony conviction there by negatively affecting the classes mentioned in this article then, why should employers be held to a different standard? Why can’t an employer NOT hire convicted felons?

  2. charles handler

    Nice job expressing a topic that should be of real concern to everyone involved in creating hiring related policies for their organizations. My humble opinion is that one cannot ever underestimate the importance of making sure all hiring criteria are job related and documenting this fact. When it comes to court cases, documentation is of the utmost importance.

  3. Rex Ryan

    An interesting and thoughtful post, and thank you for including the case cite.

    Mr. Douglas El (the appellant in this case) claimed that he was wrongfully discriminated against on the basis of race. Title VII of the 1964 Act specifically prohibits this type of discrimination. Mr. El had been conditionally hired by King Paratransit Services, Inc. (a SEPTA sub-contractor) to drive paratransit services for the mentally/physically disabled. King provided door-to-door and curb-to-curb transportation for some of the most vulnerable members of society.

    Curiously, Mr. El’s conditional employment (which was subject to a clean background check) was terminated not because of his ethnicity, but rather because he had been previously convicted of 2nd degree murder. A fact that Mr. El does not deny.

    In his appeal, Mr. El alleges that African Americans and Hispanics are more likely to have a criminal record and thus (again this is Mr. El’s view) are disproportionately affected by an employment policy barring convicted felons and in this case murderers.

    When Mr. El went to the EEOC for assistance, he found a friendly ear (no great surprise there). When the EEOC was unable to prevail upon SEPTA to change their policy (and kudos to the good folks at SEPTA for standing up to the EEOC) both Mr. El and the EEOC attempted to have the Civil Rights Division of the Department of Justice to engage on their behalf. The CRD took one look at their case and told them to pound sand.

    Mr. El, on his own this time, brought the case to Federal District Court. The district court looked at the case from several different perspectives. SEPTA moved for a summary judgement and prevailed on not one but two grounds for the motion:
    – SEPTA had submitted sufficient evidence to prove that its policy was justified by business necessity (SEPTA has a legitimate need to ensure the safety of the mentally/physically disabled passengers of whom Mr. El was to have been transport driver)
    – El failed to provide evidence sufficient to prove that an alternative employment policy would accomplish SEPTA’s legitimate goal of public safety

    Mr. El’s case never went to trial (summary judgement is pre-trial) in the district court. Undeterred, Mr. El (with support from the NAACP as amicus) appealed. The Third Circuit Court of Appeals affirmed the district court’s summary judgment on both grounds.

    What does this mean? It means that companies who have a legitimate interest in protecting their customers, their employees, or others are not compelled to hire convicted murderers regardless of the murderer’s ethnicity.

    It is unfortunate that Mr. El has, and will continue to have, difficulty in finding gainful employment. What is even more unfortunate is that the young man (16 years old) that Mr. El murdered will never have the opportunity to finish high school, attend college, or find gainful employment.

    Mr. El circumstances are the natural consequence of the choices he made and the actions he took as a gang-member. He has no one else (and nothing else) to blame.

    To suggest otherwise is deceitful and dishonest.

    Those are the facts as I see them. Share your thoughts!

  4. Litigation Increases in Economic Downturn « Competitive intelligence on e-recruitment SaaS Vendors

    [...] Add ‘Review Background Screening’ To Your List of Resolutions notes that EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. Focusing on the direct relationship between each position’s background screening criteria and the job description can help avoid issues. [...]

  5. Mr. Background Check Went to Washington

    [...] policies would have a disparate impact on minorities.  We spent a great deal of time discussing El v. Septa as it will continue to be an important force in future guidelines on background screening.  At the [...]

  6. criminal record information

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  7. Mr. Background Check Went to Washington | EmployeeScreenIQ Blog

    [...] policies would have a disparate impact on minorities.  We spent a great deal of time discussing El v. Septa as it will continue to be an important force in future guidelines on background screening.  At the [...]

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