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Represents management exclusively in every aspect of
employment, benefits, labor and immigration law and
related litigation
Over 700 attorneys in 49 locations nationwide
Current caseload of over 5,000 litigations and
approximately 300 class actions; over 2,100 litigations
brought to the firm in 2010 alone
Founding member of L&E Global
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Ranked in the First Tier nationally in the category of Labor
and Employment Litigation, as well as in both Employment Law and
Labor Law on behalf of Management in the U.S. News - Best Lawyers®
“Best Law Firms”
Recommended in U.S. Legal 500 for Labor and Employment Litigation,
Labor-Management Relations and Workplace and Employment
Counseling
Recognized by in-house counsel of Fortune 1000 companies in a survey
conducted by BTI Consulting Group as “the single highest-ranked firm
clients want by their side in employment battles”
54 Jackson Lewis attorneys were named Leaders in Their Field by
Chambers USA for 2011; 60 Jackson Lewis attorneys were named Best
Lawyers in America® in the 2012 edition
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Affirmative Action and OFCCP
Planning and Counseling
Labor, including Preventive
Practices
Corporate Diversity Counseling
Litigation, including Class
Actions, Complex Litigation
and e-Discovery
Disability, Leave and Health
Management
Employee Benefits, including
Complex ERISA Litigation and
Executive Compensation
Global Immigration
Non-Competes and Protection
Against Unfair Competition
Wage and Hour Compliance
Workplace Safety Compliance
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Alternative Dispute Resolution
Collegiate and Professional Sports Industry Group
Corporate Governance and Internal Investigations
Drug Testing and Substance Abuse Management
International Employment Issues
Government Relations
Management Education, including e-Based Training
Privacy, Social Media and Information Management
Public Sector Issues
Reductions in Force, WARN Act
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Jackson Lewis represents a wide range of companies in
various industries, including:
Automotive
Hospitality
Banking
Insurance
Construction
Manufacturing
Education
Energy
Financial Services
Non-Profit
Pharmaceuticals
Real Estate
Retail
Government
Sports
Health Care
Transportation
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GAREN E. DODGE is a Partner in the Washington, D.C. Region office of Jackson Lewis
LLP. He is co-Leader of the firm’s Government Relations practice, and coordinator of the
firm’s Government Contracts industry group.
Mr. Dodge represents clients before Congress and key federal agencies such as the
EEOC. In that context, he advised EEOC Commissioners and their staffs on the
agency’s criminal background guidance. He submitted comments and provided analysis
that helped improve that guidance. After issuance of the guidance, Mr. Dodge provided
analysis to the media, including the Daily Labor Report, and has spoken to multiple
industry groups to facilitate compliance.
Phone: (703) 483-8323
Email: dodgeg@jacksonlewis.com
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SUSAN M. CORCORAN is a Partner in the White Plains, New York office of Jackson Lewis
LLP. She serves as a Firm resource on fair credit reporting act and background check
issues, having assisted many employers and consumer reporting agencies in their
compliance efforts. Ms. Corcoran has also been involved in providing litigation support
and employment defense of background check decisions, particularly given New York
has long provided individuals who have been convicted of crimes protections under its
Corrections Law.
Phone: (914) 514-6104
Email: corcors@jacksonlewis.com
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PAUL PATTEN is a Partner in Jackson Lewis’s Chicago Office. Mr. Patten frequently
represents clients facing Equal Employment Opportunity Commission pattern or practice
investigations and subsequent litigation by the EEOC. Earlier in his career, Mr. Patten
was a Trial Attorney for the EEOC.
Phone: (312) 803-2570
Email: pattenp@jacksonlewis.com
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MICKEY SILBERMAN is the Chair of the Affirmative Action-OFCCP practice group and is the
Managing Partner of the firm’s Denver, Colorado office. Mickey specializes in systemic
discrimination, affirmative action, EEO compliance, and diversity.
Mickey spends much of his time counseling companies on complex, "real world" issues
relating to systemic discrimination, diversity, EEO, and affirmative action compliance. He
has helped many national employers develop compliance programs relating to
recruitment, applicant tracking, pre-employment testing, background checks,
compensation systems, performance assessment, succession planning, etc. He also
conducts mock audits to help companies assess their compliance with EEO and
affirmative action obligations.
Phone: (303) 225-2400
Email: silbermm@jacksonlewis.com
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On April 25, 2012 the EEOC approved, by a 4-1 vote, an
Enforcement Guidance on the Consideration of Arrest and
Conviction Records in Employment Decisions under Title VII
of the Civil Rights Act of 1964
The Guidance was effective immediately
There was no public comment on proposed content
The Guidance is 52 pages (although pages 27-52 are
endnotes) and give examples of proper and improper
employer practices
We will reference the examples throughout today’s Program
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The Guidance replaced
a 1987 EEOC Policy Statement regarding Conviction
Records;
and
a 1990 Policy Guidance on the Consideration of Arrest
Records
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Dissenting Commissioner Barker
“In summary - I object to the utter lack of transparency in
the development of this guidance. I object to the
inexcusable way the public has been intentionally shut
out of this process. I object to the unnecessary haste at
which this document has been pushed through, and I
object to the burden it places on business owners.”
14
On the other hand, the Legal Action Center press release
states:
“LAC and HIRE wholeheartedly support the new
guidance, including provisions that:
Put employers on notice that categorical exclusions for
people with certain convictions may violate [federal law]
because of the disparate impact on minorities….
Offer examples of common policies and practices that
violate Title VII….”
ACLU, NELP and others very pleased
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The Jackson Lewis Government Relations team worked publicly and
privately
Met with individual Commissioners and staff
Organized a full-day “hearing” at US Chamber
Submitted comments and legal analysis
Capitol Hill
OMB (OIRA)
The final Guidance is an improved document
EEOC is not finished: credit checks and other “barriers” to
employment
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Employer’s neutral policy may disproportionately impact
individuals protected under Title VII (disparate impact)
Disparate impact burden-shifting framework:
o Plaintiff(s) or EEOC demonstrates the employer’s facially neutral
policy has a statistically significant disparate impact on a
protected group
o Burden shifts to employer to demonstrate the policy is job-related
and consistent with business necessity (and consistently applied)
o Even if the employer proves business necessity, the plaintiff(s) or
EEOC may prevail by showing the employer refused to adopt an
alternative practice that would satisfy the employer's legitimate
interests without having a disparate impact on a protected class
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EEOC will seek to make a prima facie disparate impact
case through statistical analyses of the employer’s
applicant, workforce, and/or third-party background
history
Therefore, expect the EEOC to request applicant and
background check data in its investigations
o “The Commission will assess relevant evidence when making a
determination of disparate impact, including applicant flow
information maintained pursuant to the Uniform Guidelines on
Employee Selection Procedures, workforce data, criminal history
background check data….”
18
Technology has changed everything -- and EEOC knows it
It is easier than ever before to gather detailed applicant and
background check data
o Applicant flow data maintained in ATS
o Background check data maintained by third-party providers
Applicant and background check data spanning several
years and/or covering multiple locations can be run in a
single report. This makes it more difficult for employers to
argue it is too burdensome to produce the data
EEOC knows “big numbers are bad numbers” – large data
sets are more likely to tip over into statistical significance 19
Oftentimes, the Agency will first request more general
information about applicant or background check data,
including the following:
o Fields of information available
o Dates of information available
o Who maintains the data and how it is stored, etc.
WHICH LEADS TO… RFIs for detailed applicant and/or
background check databases, which are often:
o Nationwide in scope
o Span over several years (3-5 years is typical)
o Requested of third-party vendors
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ANALYSIS
RATE FOR
GROUP ON
LEFT
RATE FOR
GROUP ON 80% STANDARD
RIGHT
RULE DEVIATION
Minority v. Non-Minority
19000/20000 29000/30000
.95
.97
Female v. Male
23500/25000 24500/25000
.94
.98
40+ v. Under 40
9500/10000
.95
38500/40000
.96
0.98
0.96
0.99
9.317
OSR
48000/
50000
.96
EXP
ACT
DIF
19200 19000 200
22.822
48000/
50000
.96
24000 23500 500
5.705
48000/
50000
.96
9600
9500
100
Once the EEOC or plaintiff(s) makes a prima facie case through statistical
evidence, the burden shifts to the employer to demonstrate that the selection
procedure was job-related and consistent with business necessity.
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From the prior example
o Job: Customer Service Representatives
o Review Period: 3/9/09 - 4/24/12 (3+ years)
o Wage Rate: $440 Week ($11/Hour)
o Shortfall: 100 (40+ Analysis)
Potential Damages: $10 million
Systemic background check cases can result in millions
of dollars of potential liability
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Employers should be concerned by the new guidance if
they use criminal background checks and:
o Use them on a regular basis (“big numbers are bad numbers”)
o Solicit and maintain race, gender, age, disability or veteran data
on applicants – this applies to government contractors and
subcontractors in particular
o Applicant and/or background check data is maintained by the
company or through a vendor
o Have a “one size fits all” criminal background check policy
23
Requires review of practices but in this speaker’s opinion
does not restrict employers’ rights to continue to make
reasonable employment decisions based on criminal
background information
This concept is reinforced for multi-state employers for
whom an individualized analysis has long been required
under state and local laws – such as NYS and NYC
24
Arrests itself – as opposed to underlying conduct – should not
be considered in making employment decisions – no
significant change – the Guidance respects an employer’s
right to make credibility determination
Convictions – should be subject to individualized analysis and
dialogue
as noted above, individualized analysis already required
under some state laws
such individualized analysis also was suggested – to a
lesser extent – in the prior guidance
25
Under Title VII, an employer may justify a practice that results in a
disparate impact by demonstrating a business necessity for that
practice. An employer can demonstrate business necessity under
the 1987 Policy by showing it considered three factors in making its
decision:
1. The nature and gravity of the criminal offense(s);
2. The time that has passed since the conviction and/or completion
of the sentence; and
3. The nature of the job held or sought. (“Green factors”)
In essence, utilization of the factors was a proxy for business
necessity and the basis for arguing to EEOC there is no need for a
disparate impact analysis.
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Narrowly Targeted Screens May Satisfy Business
Necessity - The Guidance contemplates that an
employer may satisfy its Title VII obligations by using an
internal policy if it is “narrowly tailored.” The Guidance
explains “narrowly tailored” as a “demonstrably tight
nexus to the position in question. Title VII thus does not
necessarily require individualized assessment in all
circumstances.” The Guidance refers to “targeted
screens” that are based on the Green factors, i.e., the
nature of the crime, the time elapsed and the nature of
the job.
27
“Depending on the facts and circumstances, an employer may
be able to justify a targeted criminal records screen solely
under the Green factors. Such a screen would need to be
narrowly tailored to identify criminal conduct with a
demonstrably tight nexus to the position in question. Title VII
thus does not require individualized assessment in all
circumstances. However, the use of individualized
assessments can help employers avoid Title VII liability by
allowing them to consider more complete information on
individual applicants or employees, as part of a policy that is
job related and consistent with business necessity.”
28
The guidance does not require pre-validation of disqualification
criteria
Of course, SUCH A PER SE STANDARD SHOULD BE THE
EXCEPTION, NOT THE RULE and as noted the Guidance suggests
that individualized analysis accompany such a targeted screen
The Guidance does not provide an example of a narrowly targeted
screen that would pass muster. However, Commissioner Lipnic
previously provided the example of an applicant for a day care
center who had been convicted of child molesting
Recency also likely would be an issue in determining whether a
targeted screen, alone, would suffice
29
Validation Of Criminal Conduct Exclusion – but is there
data or analysis about criminal conduct as related to
subsequent work performance or behaviors?
The EEOC appears doubtful that data exists to allow an
employer to conduct such a validation study
30
Targeted Screens Accompanied by Individualized
Assessment – THE BEST PRACTICE - the Guidance
clearly prefers that a targeted screen be accompanied by
notice to the individual under scrutiny and an
individualized assessment of the individual and the crime
and the position in question. The Guidance lists nine
possible topics of consideration in an individualized
assessment, all of which generally require a dialogue:
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Criminal record is inaccurate
The facts and circumstances surrounding the offense;
The number of offenses for which the individual was
convicted;
Age at time of conviction or release from prison;
Evidence that the individual performed the same type of work,
post-conviction, with the same or a different employer, without
incidents of criminal conduct;
The length and consistency of employment history before and
after the offense;
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Rehabilitation;
Employment or character references and other
information regarding the individual’s fitness for the
particular position; and
Whether the individual is bonded.
If the individual does not respond to the employer’s
inquiries, the employer may make its decision without
the information.
33
Federal disqualifier prevails and employers not even
required to seek waivers. Examples include:
o Child care workers in federal agencies
o Bank employees
o Port workers
State or local disqualifiers do not
34
Suggested implementation of “ban the box” – but likely
does not work for every organization.
And we continue to encourage the use of broad
questions to maximize ability to argue individual omitted
or misrepresented information regarding criminal history
We differ from EEOC on this issue because we
believe judicious use of information is a better alternative
than avoiding information to ensure “bad” decisions are
not made
Suggestion of claims for those discouraged from
applying due to employer’s reputation in community
35
The EEOC has taken the position that it can expand any
individual charge into a systemic investigation if the charge
does not challenge a criminal background practice or even
allege hiring discrimination
The charge is more likely to be expanded when the EEOC
has information that the employer conducts background
checks
Courts have generally approved of such expansion,
particularly if the EEOC stays within Title VII and proper notice
of the expansion is provided by the EEOC
36
The EEOC will be looking for evidence that an employer
conducts criminal background checks in unrelated
charges
Avoid erroneously providing criminal background
practice and policy information in exhibits to EEOC in
unrelated charges
If the charge does not address criminal background
issues, avoid unnecessarily disclosing the fact that the
charging party took and passed a criminal background
check, which might be contained in a personnel file
37
EEOC offices that are straightforward will provide official
notice
Notice will be followed by a broad request for information
The EEOC seeks “big numbers”
The EEOC perceives inconsistencies, e.g., one
particular decision maker or HR representative who
mistakenly did not follow the EEOC’s policy or the
employer’s stated policy, as evidence of a broader
problem
38
Be completely honest with the EEOC (know the facts
before making representations)
Keep the scope of the response narrow (initially provide
data for workforce subgroups (geographic, time, job
position))
Utilize statistical expertise to determine the scope of the
response
Demonstrate compliance with EEOC policies (this is
dependent on having policies in place and implemented)
39
Targeted Screens: use different standards for different
positions
Avoid policies that indicate automatic exclusions,
instead, “Acme Corp. believes the following crimes are
job related--applicants with these offenses will be subject
to individualized assessment”
Train HR and decision makers to avoid local decision
makers’ instinct to rely on hard and fast rules—such
communications jeopardize demonstrating compliance
Self-audit to root out inconsistencies, e.g. on-line kick out
40
Document thought process if developing general
disqualifications, business purposes, past experience,
etc.
Consider making criminal inquiry at interview stage—
preferred by EEOC and avoids EEOC concern that
criminal backgrounds were considered at application
stage
Disqualifiers mandated by state law: arguably the
business necessity defense applies; make sure the
crime precisely meets the definition of the state
exclusion; to be safe, perform individualized inquiry
41
If settling, use of legal counsel is vitally important
Various Title VII defenses and developing court
precedent can assist to limit the time and geographic
scope of victim class
Absolutely crucial to utilize counsel familiar with
“statistical cases” so that data can be presented
appropriately and relief limited in amount and to proper
victim class
42
Also there is the potential for class action suits driven by
plaintiffs’ bar
Be careful that individualized assessments do not create
disparate treatment issues, i.e., hiring Caucasians who
“explain away” a criminal record and not hiring minorities
who provide similar explanations
43
Not 100% clear but even if courts don’t, significant potential
issues with EEOC before judiciary becomes involved
Courts sometimes bow to EEOC guidance – Justice Scalia
generally defers to EEOC
If guidelines rejected, pure Disparate Impact business
necessity analysis applies – difficult standard to meet and
arguably validation is required
Also potential challenges to Guidance based on manner in
which EEOC passed it and potential Congress would limit
EEOC’s funding to enforce Guidance
44
Periodically conduct a self-audit of the disparate impact of
your background check policies
o Analyze your data to identify which criminal offenses are causing
disparate impact
o Consider alternative policies or background criteria that lessen less
impact
Analyze the data to ensure it is consistently used to
disqualify applicants (if not consistently applied, this can be
evidence of disparate treatment)
Conduct these analyses under the attorney-client privilege
45
Review and refine current policies
Limit per se disqualifiers (especially those that apply to all
criminal records) and engage in appropriate analysis for any
remaining per se disqualifiers
Analyze specific jobs and specific crimes if a general matrix is
utilized
Consider recency
Maintain a file explaining the basis for policy refinements
Train personnel with hiring responsibilities
46
Be careful of automatic pre-adverse action letters
If ratings are used, utilize caveats
Engage in individualized analysis and dialogue
whenever possible
47
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THE MATERIAL CONTAINED IN THIS PRESENTATION WAS
PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE
ATTENDEES’ OWN REFERENCE IN CONNECTION WITH THIS
SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE
INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT
THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH
COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT
CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE
LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE
OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL
SITUATION OR PROBLEM.
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