Recently, the Equal Employment Opportunity Commission entered into its first consent decree with an employer since the EEOC Guidance was initially published in 2012. It alleged that the employer’s hiring policies surrounding criminal records disproportionately disqualified minority employees and violated Title VII of the Civil Rights Act. By entering into the consent decree the employer expressly denied liability and wrongdoing, but they are also required to adhere stringent hiring guidelines put forth by the EEOC.
While the decree outlines some increasingly popular ideologies we are already familiar with due to increasing Ban the Box legislation and the EEOC Guidance, it also introduces some new concepts that our industry will likely see more of with the EEOC’s increasingly aggressive intent to eliminate what it deems as discriminatory practices among hiring entities.
In addition to hefty fines, the consent decree placed the following requirements on the employer:
- Offering employment to those individuals included in the suit and up to 90 applicants who were denied positions based on the employer’s previous guidelines;
- Training its staff on the new requirements in a manner consistent with Title VII of the Civil Rights Act;
- Conducting an individualized assessment if the employer wants to consider a criminal offense in their employment decision, including notifying the applicant of the particular offense that is of concern and providing an opportunity for the applicant to supply additional information;
- Holding the position open for 21 days before an adverse employment decision is finalized;
- Modifying its criminal background check policy so they will not disqualify any individual because of non-pending criminal arrests or charges that did not result in a conviction;
- Appointing an official to review all final decisions of disqualifying applicants due to their criminal history
- Reporting information to the EEOC as agreed upon
The recent consent decree provides a framework which should have all employers taking note and evaluating their employment background checks policies.
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