by Kylie Crawford TenBrook
The new season of American Idol begins tonight. While viewers are getting acquainted with a new panel of judges and group of contestants, Fox attorneys are battling charges from former contestants. In July, 10 black former American Idol contestants filed a 429-page discrimination complaint against Fox and the show’s production company alleging that the companies discriminated against them based on their race. According to the complaint, nearly one-third of the black male semifinalists on the show have been disqualified for something other than their singing ability. The contestants further allege that the show has never disqualified a nonblack contestant.
EEOC’s promise of a new day
Putting aside the fact that Fox should have a really good argument that the contestants were not employees and therefore were not entitled to protection under Title VII of the Civil Rights Act of 1964 (that is, they had not filled out I-9s, signed documents identifying them as employees, and joined the television performers’ union), do the contestants have a claim? The lawyerly answer: Maybe.
The Equal Employment Opportunity Commission (EEOC) has been cracking down on employers that perform background checks on potential employees. According to the EEOC, arrest and conviction records and credit reports may have a disparate impact on applicants in certain protected classes. Disparate impact discrimination is different from the more familiar disparate treatment discrimination in that disparate impact discrimination involves a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. In other words, disparate impact discrimination does not require proof of a discriminatory motive.
The EEOC’s stance on the use of arrest and conviction records is that certain racial minorities are arrested and convicted at disproportionate rates when compared to nonminority groups, meaning the use of arrest and conviction records disproportionately excludes minorities from employment. Regarding credit reports, the agency believes that minorities and women are disproportionately and socioeconomically disadvantaged, and therefore, the use of credit reports disproportionately affects those groups’ employment opportunities.
In April 2012, the EEOC issued guidance on the use of arrest and conviction records in employment decisions (visit www.eeoc.gov/laws/guidance/arrest_conviction.cfm). Under the guidance, background checks must be job-related and consistent with business necessity. When considering conviction records, employers must look at (1) the nature and gravity of the offense, (2) the amount of time that has passed since the offense, and (3) the nature of the position sought. According to the EEOC, arrest records are never job-related and consistent with business necessity because applicants must be treated as innocent until proven guilty.
Straight up, now tell me
Because disparate impact claims arise from facially neutral practices, it can be hard to see them coming. Here are some steps to minimize legal exposure if you use background checks:
- Perform credit checks only when absolutely necessary. It is unlikely that an applicant’s economic status will provide any indication of how she will perform as a sales manager. If credit checks are used at all, limit them to employees who will be responsible for big financial decisions (e.g., upper management positions or a chief financial officer).
- Review your use of arrest and conviction records to ensure it is in line with the EEOC’s guidance. Discuss your company’s current use of background checks with your legal and HR teams. Examine each job category for which arrest and conviction records are considered, and determine whether exclusions are job-related and consistent with business necessity. Also, think about how long you want to look back for each type of offense. A conviction for assault likely will be given a longer waiting period than a conviction for possession of marijuana.
- Carefully document your process and reasons for adopting background check standards. This is your best defense if the EEOC comes knocking.
P.S. In case you didn’t notice, my subheadings are influenced by Paula Abdul songs. Some of my best memories come from Jazzercise classes I took as a chunky kid, flailing about to her songs in spandex and a leotard.
Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.