EEOC Protected Classes

On September 19, 2012, the Newark, New Jersey Municipal Council passed Ordinance 12-1630, "which limits employers' ability to conduct criminal background checks." The ordinance went into effect November 18, 2012 and "prevents employers with five or more employees who do business, employ persons or take applications for employment in the City of Newark, from asking applicants about their criminal history."

The employer "can only perform the background check after a conditional offer has been made and the employer makes a 'good faith determination' that the job position is of a sensitive nature." Sensitive nature is, however, not defined. In fact, if an employer is permitted to make a criminal history inquiry in connection with any employment decision, the employer first must provide the individual with written notice. The notice must advise: (1) that the employer will conduct the criminal history inquiry upon the written consent of the individual; and (2) if any adverse employment decision is made as a result of the information, the individual will have an opportunity to present rebuttal evidence.

According to a Society for Human Resource Management (SHRM) briefing submitted to the U.S. Commission on Civil Rights by Jonathan A. Segal asserts that

HR professionals are charged with ensuring that each individual hired possesses the talent, skills, and work ethic needed for the organization's success. The consequences of making a poor hiring choice can be great, possibly leading to financial losses, an unsafe work environment, and, if the employee engages in severe misconduct, legal liability to customers, shareholders or other employees in the form of a negligent hiring lawsuit or other legal claims.

Thus, "employers typically run a credit check, for example, on only those finalists for positions that involve money-handling or other fiduciary responsibility." In fact, "many state laws require the use of criminal background checks for certain industries to maintain their licenses." These would include health care and child care positions. Asking a potential employee's previous employer often results in a less than accurate assessment because "employers can face claims made by the former employees themselves (in the form of a defamation or retaliation lawsuit)." That is why "many employers use the services of a background check company in an attempt to obtain the most accurate and complete picture of the potential employee."

In light of the Newark restriction concerning criminal background checks, the following must be considered to assess the prudence of this latest Ordinance.

• If a landlord hires someone to fix problems in apartments, that individual now has access to all apartments. Consider if an applicant has a recent rape conviction but no background check has been permitted.

• The National Retail Security Survey estimates that "the U.S. retail industry lost more than $34 billion in 2011 as a result of employee theft. Why shouldn't an employer, especially in Newark, NJ, have the ability to do a pre-employment background check and not "after a conditional offer has been made?"

• In fact, according to SHRM's own survey, "having a criminal record is not an automatic bar to employment." But if "adverse information is found as a result of the criminal background check, 58% of the SHRM respondents indicated that they give the candidate the opportunity to explain the circumstances before the job decision to hire or not to hire is made. In fact, in April 2012, EEOC had already updated guidance for employers to avoid discrimination when using criminal history information.

Furthermore, under the federal Fair Credit Reporting Act (FCRA) "an employer that uses a third party provider in the background process must notify the potential employee in advance of the process and obtain the applicant's written approval to have his or her background checked by the provider." So what has changed?

Unsurprisingly, there is now a "new Summary of Rights in the FCRA that employers will need to begin using starting January 1, 2013 giving further credence to the difficulties that employers face when hiring new employees. The result is increasing paperwork and cost to the employers.

Increasingly, employers find themselves "between a rock and a hard place -- between losing their state license or opening themselves up to liability if they do not comply with a state law mandating criminal background checks and risking a class action lawsuit if they go forward with criminal background checks and base hiring decisions on the results."

Moreover, if the EEOC claims that "criminal record exclusions have a disparate impact based on race and national origin" why should an employer suffer the consequences of faulty decisions made by individuals? Why is the shift of responsible decision-making always falling on employers with the concomitant financial burdens, burgeoning paperwork and litigation worries? And more importantly, is there a disproportionate amount of crime among a certain group, and, if so, why? And how can it be reduced?

The EEOC has also weighed in on the possibility that "employees who are victims of domestic violence, dating violence, sexual assault or stalking" would come under Title VII and the ADA. Thus, "potential employment discrimination and retaliation against these individuals... may trigger protection under Title VII or the ADA. Consequently, an employer "may have to reassign a domestic violence victim to another position at another office location if the victim develops depression that is exacerbated by working in close proximity to her attacker."

And in Macy v. Holder the EEOC "adopted the position that employment discrimination against transgender individuals is a form of sex discrimination under Title VII [.]" How would this be factored concerning weight limits for lifting or carrying packages? What happens if a person is undergoing surgery over a period of time? Will a company need to construct a separate bathroom facility to accommodate the individual before the surgery is completed?

Almost one year ago, the Washington Times wrote about how "EEOC undermines job creation" with the news that the Equal Employment Opportunity Commission (EEOC) was considering that "requiring a high school diploma for a job can be an illegal act of discrimination." EEOC's reasoning was that "[p]eople with learning disabilities who don't obtain diplomas face discrimination if businesses use the diploma as a way to screen job applicants."

HR Law Matters emphasizes that "EEOC's continued focus on aggressively litigating systemic charges of discrimination is not good news for employers" as the "EEOC is very interested in evaluating hiring decisions using a disparate impact theory." Thus, "if the demographics of the employer's community show minority candidates were available for work but they did not apply for the available positions, the EEOC's question for those employers will be: Why were you not able to find the qualified minority candidates for the available work?"

It is a "damned if you do and damned if you don't" predicament for employers -- who themselves should be considered a "protected class" given the battering they receive from the federal government. This assault will now multiply and increase with the re-election of Barack Obama.

Eileen can be reached at

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