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1 together Conviction/Credit Check Issues Presented at the ABA Section of Labor and Employment Law Annual Conference November 6, 2010 Robert Jon Hendricks Overview Covered Topics EEOC Guidelines and Policies on Criminal Convictions Credit Checks and the Fair Credit Reporting Act (FCRA) Employer s Expectations upon Receipt of a Charge Scope of the EEOC s Investigations/Lawsuits Considerations in Implementing Criminal Conviction Policies 2 EEOC Guidelines and Policies on Criminal Convictions 3 1

2 EEOC Guidelines - Convictions EEOC s view on excluding individuals from employment based on criminal convictions: It has an adverse impact on African Americans and Latinos and is therefore unlawful under Title VII absent a justifying business necessity. Studies show that 1 in 3 African Americans has a criminal conviction. A blanket policy excluding persons convicted of any crime is not job related or consistent with business necessity. 4 Three Factors to Determine if Business Necessity EEOC Guidelines focus on the following three factors: The nature and gravity of the offense(s); The time that has passed since the conviction and/or completion of sentence; and The nature of the job held or sought. 5 EEOC Policy Is Consistent with Case Law Employers should measure the person for the job and not the person in the abstract. Griggs v. Duke Power Co., 401 U.S. 424, 433 (1971). Disparate impact theory of discrimination applies to an employer s blanket no convictions hiring policy and should be struck down. Green v. Missouri Pac. R.R.Co., 523 F.2d 1290 (8th Cir. 1975). 6 2

3 Most Recent Case on This Issue El v. Southeastern Pennsylvania Transp. Auth. ( SEPTA ), 479 F.3d 232 (3d Cir. 2007). Court affirmed summary judgment for employer that proved its policy was consistent with business necessity. The applicant had a 40-year-old conviction for second-degree murder. The job required employees to be in very close contact with those with mental and/or physical disabilities, who the employer showed are disproportionately targeted as crime victims. The employer presented expert evidence that violent criminals have a high rate of recidivism. Title VII requires that an employment policy distinguish between applicants that pose an unacceptable level of risk and those that do not. Notable that in this case the plaintiff applicant did not present any expert evidence. (Subsequent studies show that recidivism drops significantly with passage of time since conviction.) 7 New Report on Recidivism Recidivism rates are the highest within the first year after an individual has committed a crime and then decrease each year thereafter; After a 5-year period for some crimes, a person with a conviction is no more likely to commit a crime as a person with no criminal record; and If 10 years pass and the individual has not committed another crime, the potential for him/her to commit a crime again is greatly reduced. 8 Implications for Disparate Treatment Discrimination Liability Application of a conviction policy could subject an employer to disparate treatment liability if it is used to reject minority applicants with conviction records but not similarly situated white applicants with conviction records. 9 3

4 EEOC Guidelines and Policies on Credit Checks 10 EEOC Policy - Credit Histories Employment policies related to employees and/or applicants credit histories are also subject to challenge under a disparate impact theory of discrimination. Employer s policy of discharging employees whose wages have been garnished to satisfy creditors judgments had a disparate impact on African Americans and was not supported by business necessity. Johnson v. Pike Corp. of America, 332 F. Supp. 490 (C.D. Cal. 1971). 11 When to Consider Credit Reports Employers should approach the use of credit reports with caution and only when relevant to the potential employee s duties or position such as: performing fiduciary duties, handling cash, or managing or controlling other company assets. 12 4

5 Fair Credit Reporting Act The EEOC relies upon the Fair Credit Reporting Act (FCRA), which requires employers to: advise applicants in writing, on a separate stand-alone form, that a background check will be conducted; obtain written authorization; notify the applicant that a poor credit history will not automatically result in disqualification from employment; provide employee with a copy of the report before taking adverse action based, in whole or in part, on the contents of the report; and if an adverse action is taken based on the contents of the report, provide the individual with the name, address, and telephone number of the Consumer Reporting Agency that provided the report. 13 More Aggressive Enforcement The EEOC has demonstrated an increased interest in enforcing its position that employers policies regarding conviction and credit histories adversely impact minorities: October 1, 2009 Press Release: The EEOC filed a lawsuit against Freeman (D. Md.) on the basis that the company uses criminal records and credit reports to discriminate, through disparate impact discrimination, against African Americans, Latinos, and male job applicants. September 2008: The EEOC filed similar allegations against Peoplemark, Inc. (W.D. Mich.). 14 Reasons for the Increased Enforcement Appears to be part of the EEOC s recent E-RACE Initiative (Eradicating Racism and Colorism from Employment) in which the EEOC seeks to identify barriers to equal employment opportunities and improve its efforts to ensure that workplaces are free of race and color discrimination. May also be related to heightened attention to barriers to employment as a result of the economic downturn and high unemployment rates. Current economic conditions have also focused greater attention on the prevalence and impact of negative credit histories. 15 5

6 Employer s Expectations upon Receipt of a Charge 16 EEOC s Investigation As an employer, what can you expect? Vigorous investigation starting with the EEOC s request to review documents on company premises. Be sure to make copies of all documents provided to the EEOC Broad and far-reaching information requests. Seeking information re: nationwide operations Within a significant (and potentially undefined) period of time Our experience demonstrates that the EEOC will provide the company with a short window of time in which to respond Information requests may likely be followed with a subpoena for any information not provided in response to the information requests. 17 EEOC s Investigation Examples of the types of documents the EEOC may seek: Employment applications; Hire-related tests and results; Background check and results; Information concerning applicant s race; Correspondence concerning the hiring (or not hiring) of the individual; Correspondence concerning the individual s criminal conviction; Company policies, and any other documents showing how or why such policies were adopted; Job descriptions; and EEO-1 Reports. 18 6

7 EEOC s Investigation Employer strategies for responding to EEOC s requests for information and/or subpoenas Seek to obtain a reasonable scope to the charge and the investigation If the EEOC s requests are narrowly tailored, the employer may want to simply cooperate and respond. If the EEOC s requests are broad and far-reaching, the employer may want to engage the EEOC in dialogue to limit the scope. Internal request to the EEOC to limit the scope of the subpoena Initiate litigation/move to quash subpoena. The employer should consider the pros and cons of engaging in litigation with the EEOC. 19 EEOC s Investigation Pros: Avoid producing irrelevant information and make the EEOC articulate the scope of the charge Potential to create favorable case law Puts the EEOC on notice that the company is prepared to litigate Cons: Costly and time intensive Potential to create unfavorable case law Deters the EEOC from engaging in potential settlement discussions 20 Scope of EEOC Investigations/Lawsuits 21 7

8 EEOC Investigations/Lawsuits Focus on Pattern or Practice Claims Scope of Investigations Applicable Statute of Limitations 22 EEOC Investigations/Lawsuits TRAPS FOR UNWARY IN PATTERN OR PRACTICE INVESTIGATIONS RECENT CASE DEVELOPMENTS It doesn t matter if the case is filed as an individual charge See, e.g., EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005) It doesn t matter if the company settles with the complainant See, e.g., EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009) The EEOC does not have to confine itself to the facility in question, particularly when it involves challenges to a company policy See, e.g., EEOC v. United Parcel Serv., 587 F.3d 136 (2d Cir. 2009) It doesn t matter if the individual requests a right to sue and initiates his/her own lawsuit See, e.g., EEOC v. Federal Express Corp., 543 F.2d 531 (9th Cir. 2008) The EEOC has broad leeway in expanding the scope of its investigation See, e.g., EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005) The EEOC can request documents from a third party vendor, such as the vendor that assists in securing an applicant s criminal records See, e.g., EEOC v. Kronos Inc., 2009 WL (W.D. Pa. 2009) 23 EEOC Investigations/Lawsuits Scope of EEOC Investigation Based on Individual Charge EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005) Facts: Charging party alleged harassment by her supervisor. No allegation of harassment involving others. Issue: Can the EEOC transform an individual-based charge into a reasonable cause finding of a pattern or practice of discrimination? Holding: Yes. [A] suit by the EEOC is not confined to claims typified by those of the charging party. Any violations that the EEOC ascertain in the course of a reasonable investigation of the charging party s complaint are actionable. Cf. Private lawsuit Courts may apply different standard regarding expansion of individual charge into class action claim. See, e.g., Schnellbacher v. Baskin Clothing Co., 887 F.2d 124 (7th Cir. 1989). 24 8

9 EEOC Investigations/Lawsuits Scope of EEOC Investigative Authority After Settlement of Individual Charge EEOC v. Watkins Motor Lines, 553 F.3d 593 (7th Cir. 2009) - Investigation Authority of EEOC Issue: Can the settlement of an individual EEOC charge defeat EEOC jurisdiction to investigate a pattern and practice claim? Holding: No. Rationale: EEOC regulations state that [a] charge filed by or on behalf of a person claiming to be aggrieved may be withdrawn only by the person claiming to be aggrieved and only with the consent of the Commission... where the withdrawal of the charge will not defeat the purposes of Title VII. 29 CFR The agency does not commit legal error, or act arbitrarily, by concluding that it will defeat the purposes of Title VII for the settlement of a single applicant s claim to wipe out a pattern and practice investigation. A charging party s change of mind does not diminish the agency s authority to investigate on its own behalf. The Commission s decision not to allow a private charge to be withdrawn is as if a commissioner filed a charge. 42 U.S.C. 2000e-5(b). 25 EEOC Investigations/Lawsuits Potential Broad Geographic Scope EEOC v. United Parcel Serv., 587 F.3d 136 (2d Cir. 2009) Upheld EEOC subpoena seeking nationwide information relating to company policy based on individual charge Rejected claim that requested material not maintained in centralized location District court s role in enforcing an administrative subpoena is extremely limited Court focused on key factors such as policy (e.g., appearance policy) applied to every UPS facility in the country 26 EEOC Investigations/Lawsuits Initiation of Lawsuit by Individual Does Not Impact EEOC Pattern or Practice Investigation EEOC v. Federal Express Corp., 543 F.3d 531 (9th Cir. 2008), cert. denied, 2009 U.S. LEXIS 8012 (Nov. 9, 2009) Right-to-sue letter issued, but EEOC continued to process charge and issued extremely broad subpoena Ninth Circuit held that the EEOC s authority did not end with issuance of a right-to-sue letter EEOC controls the charge regardless of what the charging party decides to do" (citing EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002)) [NOTE: The Ninth Circuit declined to follow EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997) reaching the opposite conclusion] 27 9

10 EEOC Investigations/Lawsuits EEOC Access to Information from Third Parties EEOC v. Kronos Inc., 2009 WL (W.D. Pa. June 1, 2009) EEOC subpoenaed third-party testing company Kronos for documents and data related to investigation of Kroger s failure to hire a disabled employee (and attempted broader investigation re: African Americans) District court held subpoena was overbroad as it sought unlimited information related to Kronos s entire client base District court restricted subpoena but allowed EEOC to get information from Kronos as it related to work for Kroger Appeal pending and set for argument before Third Circuit 28 Applicable Statute of Limitations in Pattern or Practice Actions by EEOC 29 Scope of EEOC Investigations APPLICABLE STATUTE OF LIMITATIONS IN EEOC INVESTIGATIONS/LAWSUITS Critical issue being debated in courts Is EEOC bound by 300-day limitations period in pattern or practice cases? EEOC Position - No limitations period applicable to pattern or practice cases Employer View - EEOC limited to claimants who could have filed claims within 300 days of charge See, e.g., EEOC v. Freeman, Case No. 8:09-cv (D. Md.) (EEOC action, in relevant part, involves nationwide suit alleging discrimination against African American and Hispanic job applicants based on use of criminal records in application process) 30 10

11 Limitations Period - Discrimination Claims Nat l R.R. Passenger Corp. v. Morgan (S. Ct. 2002) What constitutes an unlawful practice; and When has that practice occurred 31 Limitations Period - Discrimination Claims Discrete Acts Hostile Environment Claims Broader Refusal to to hire hire Termination Failure to to promote Denial of of training Court Court viewed as as a a series of of separate acts acts that that collectively constitute one one unlawful employment practice. 32 Applicable Limitations Period APPLICABLE LIMITATIONS PERIOD Section 706(e)(1) - Applicable Limitations Period - Individual Claims A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful practice occurred...except in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency...,such charge shall be filed... within three hundred days after the alleged unlawful employment practice occurred U.S.C. 2000e-5(e)(1) Section 707(e) - Pattern or Practice Claims Investigation and action by commission pursuant to filing of charge of discrimination; procedure The Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title. 42 U.S.C. 2000e-6(e) 33 11

12 Applicable Limitations Period Applicable Limitations Period in EEOC Pattern or Practice Cases Compare EEOC v. CRST Van Expedited, Inc., 615 F. Supp. 2d 867 (N.D. Iowa 2009) (applied 300-day limitations period to claims initiated by EEOC), with EEOC v. Sterling Jewelers, Inc., 2010 WL (W.D.N.Y. Jan. 6, 2010), and EEOC v. LA Weight Loss, 509 F. Supp. 2d 527 (D. Md. 2007) (courts held EEOC is not bound by limitations period in pattern or practice claims) 34 Recent Favorable Developments Potential obligation to identify those for whom relief is sought Serrano v. Cintas Corp. slip op., Case No , (E.D. Mich. Mar. 2, 2010) (court ordered EEOC to respond to interrogatories requesting identification of individuals for whom it would be pursuing damages) 35 Considerations in Implementing Criminal Conviction Policies 36 12

13 Legitimate Policies What courts focus on: the manifest relationship between the policy and the job performance and, specifically, whether the job requires that employees be in close proximity to vulnerable members of society; whether the policy only prevents consideration of people with certain types of convictions, namely those with the highest and most unpredictable rates of recidivism; the ability to distinguish between applicants who pose an acceptable level of risk and those that do not; 37 Legitimate Policies What courts focus on: an equal application of the policy across races; empirical proof that the challenged hiring criteria accurately predicted job performance or safety of workers; statistics for the relevant labor market to prove that the company s exclusion of individuals with violent criminal convictions did not have an adverse impact on minorities/blacks; expert reports concerning rates of recidivism or any other expert statistical analysis; and whether an alternative policy would not have had less of a disparate impact. 38 Legitimate Policies Considerations in implementing policies: First, make sure that the policy does NOT state that you refuse to hire anyone convicted of a crime. In fact, it should state the opposite. Next, consider the reasons behind drafting such a policy. What are your concerns (i.e., theft, workplace violence)? Are your concerns legitimate (i.e., Have there been incidents in the past or is there a local increase in certain crimes)? Is such a policy a legitimate way to protect against your concerns? Finally, make sure the policy takes into account the nature of the crime, the time that has passed since the conviction, and the nature of the job sought

14 Legitimate Policies The nature of the crime and how it relates to the job for which the individual is applying. Consider the following: Does the job require the individual to be in close contact with other people and are those other people more prone to be victims of crimes, such as children or handicapped persons? Does the job require the individual to handle products or goods and was the conviction related to stealing? Is the individual applying for a position of trust and loyalty? The length of time that has passed since the conviction. According to statistics, the more recent the crime, the more likely the individual is to engage in another crime. Has the individual demonstrated rehabilitation? 40 Legitimate Policies The most important thing to remember is that a criminal conviction policy MUST NOT state that any individual convicted of a crime is barred from employment with the company

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