Background Screening 101 - The EEOC

Until the last couple of years, the primary government enforcement organization of the Fair Credit Reporting Act (FCRA) was the Federal Trade Commission (FTC). In 2012, a new organization called the Consumer Financial Protection Bureau (CFPB) was created to enforce the law. But frankly neither of these organizations garner the attention and, frankly, fear that the Equal Employment Opportunity Commission (EEOC) does.

Like "plaintiff's bar" (see post), all applicants benefit as a result of the existence of the EEOC. The mission of the Equal Employment Opportunity Commission (EEOC) is to "stop and remedy unlawful employment discrimination." Therefore, they certainly have a role in the background screening world.

Specifically, the EEOC uses a very specific thought pattern which causes them to narrow their focus quite substantially, at least as it relates to background screening. Today, they focus mostly on the criminal record elements primarily as it relates to the impact on minorities. That's not to say they won't or haven't expanded their focus beyond this, but as they will tell you, they have much to accomplish in this area. Their thought pattern centers on the fact that minorities are arrested and convicted at higher rates than non-minorities. Specifically, the EEOC will discuss the incarceration of African American and Hispanic men and how background screening inhibits them from working. Therefore, they conclude that the use of criminal records in hiring is the equivalent of discriminating based on race.

In 2013 (fiscal year), the EEOC obtained $370M in fines and judgments which is the largest in it's history. Not all of that was related to background screening. But to put in perspective, the EEOC has established a 6 point strategic plan with their first point directed at eliminating barriers to recruitment and hiring. These barriers include the use of screening tools. Additionally, they clearly point out in their strategy that their access to data uniquely positions them to identify and address those barriers. Clearly, EEOC views background screening at a primary area of focus.

Their work is primarily related to investigation and subsequent settlement of claims. The investigations are typically spawned from complaints from individuals or organizations (think independent watchdog type organizations), but may arise through other discovery methods. Once an investigation begins, the process works very similar to a class action lawsuit in terms of discovery and settlement discussions. And like plaintiff's bar in class action lawsuits, the relationship between companies and the EEOC can be quite tense. Recently this tension has migrated beyond just companies. In 2012, the EEOC published enforcement guidance. Several governors and other politicians have taken issue with the EEOC stating they believe the EEOC is exceeding it's authority and their practices are discouraging job growth. As an interesting side note, a recent study revealed that companies not using background screening hired minorities at a lesser rate than those that used background screening. Stayed tuned, I am sure there will be more to come.

Rather than get further into the politics of the matter, let's focus on how the EEOC is directly helping applicants. The guidance they published requires companies to take an individualized assessment of each case which means companies should consider the facts of the situation versus knee jerk reactions. The EEOC has brought significant attention to ensuring that there is job relevancy when choosing not to hire due to a criminal past. And most recently, their work has influenced the creation of new laws, called "ban the box", that delay the asking of whether you have committed a crime until after an offer is made. We will discuss "ban the box" further in an upcoming post. This is just a sampling of how they are influencing background screening.

The net of why you should care is that the EEOC is working hard to limit the use of criminal records in pre-employment. If you believe you are being repeatedly denied employment as a result of a past criminal conviction, then the EEOC is one place you can turn for assistance.