The filing of a new discrimination lawsuit by the Equal Employment Opportunity Commission (EEOC) answers the question whether, after five years of intensive scrutiny, employers can breathe a sigh of relief in terms of screening job applicants based on criminal records.1 The new filing reveals that the EEOC remains interested in trying to use litigation to discourage employers from directly or indirectly screening out the protected class members who tend to be arrested and convicted at disproportionately higher rates. Although the facts alleged by the EEOC are egregious, employers should take note of the lawsuit as indicating the need for caution when relying on criminal background checks in the hiring process.

Complaint and Allegations Against the Employer

The employer provides nationwide janitorial services to various businesses, including large retail stores. In January 2014, the employer hired the plaintiff, an African American, as an “area manager” janitor for several regions in Maryland. In addition to performing janitor services, area managers are responsible for hiring other custodians to work under them.

During his employment, the plaintiff reported to two district managers. These district managers were responsible for the Maryland, Washington, D.C., and Philadelphia areas. The EEOC alleges that, beginning in January 2014, the plaintiff’s district managers repeatedly subjected him to severe harassment, including using racial epithets, instructing the plaintiff not to hire other African American employees, and ordering the plaintiff to only interact with African American customer contacts.

In May 2014, the plaintiff was demoted, which the EEOC alleges was in retaliation for his opposition to harassment and discriminatory practices. In July 2014, the employer terminated the plaintiff for absenteeism. According to the EEOC, at all times, the plaintiff’s stores met all internal and external requirements for cleanliness and his customers were generally satisfied with his work.

The EEOC alleges that, since at least January 2012, the employer has maintained a standard operating procedure of discriminating against African Americans in its hiring of custodians in Maryland, Washington, D.C., and Philadelphia. In particular, the employer’s district managers allegedly instructed area managers (like the plaintiff) not to hire African American applicants unless special permission was granted.

The EEOC further alleges that in March 2014, the district managers for these regions attended a hiring fair in Maryland, and falsely told African Americans who had just been hired that the employer did not have any openings at the time. The district managers then revoked these offers of employment. Also, in March 2014, the EEOC alleges that the district managers sought to deter African American applicants by repeatedly emphasizing to them that the employer performed criminal background checks. This practice allegedly resulted in African Americans withdrawing from the hiring process.

The EEOC claims that the employer’s roster of custodian employees showed that its workforce for these areas was over 95% Hispanic, and thus revealed a statistically significant shortfall of African American custodians in comparison to census data. According to the EEOC, the employer made significant use of “word of mouth” hiring to fill vacant positions.

The EEOC’s Complaint claims, among other things, that the employer’s statements about background checks resulted in a “disparate impact” on African American workers in violation of Title VII.

Takeaway

Employers, particularly multi-state employers, should continue to monitor this and related areas of the law, including so-called “ban the box” laws.2 Employers that use criminal records (or credit checks) to screen applicants or employees should continue to consider the following:

  • Employers that want to assess potential disparate impact risks should consider conducting a privileged review of their screening policies to help identify areas of opportunity to fortify Title VII compliance. Questions to consider include whether the policy:
    • incorporates variation for different roles within the company;
    • strategically sequences the consideration of criminal records and other types of background information;
    • accounts for the developing body of criminological literature discussing recidivism; and
    • requires confidential handling and destruction of sensitive information.
  • Employers also should continue to be mindful of, and comply with, the federal and state fair credit reporting laws, such as the Fair Credit Reporting Act (where a the storm of class actions against employers has not yet abated).3