ILNews

Changes may prompt review of background check policies

August 14, 2013
Back to TopCommentsE-mailPrint
Indiana Lawyer Focus

For more than 20 years, the Equal Employment Opportunity Commission has taken the position that an employer’s use of applicants’ criminal history in making employment decisions may constitute discrimination under Title VII of the Civil Rights Act of 1964, as amended. The underlying premise has always been that because minorities are historically and statistically arrested and incarcerated at higher rates than their representation in the general population, the use of criminal records by employers in making hiring and retention decisions may be discriminatory.

erdel-katherine.jpg Erdel

The EEOC’s enforcement guidance

Citing increased access to criminal history information as motivation, the EEOC issued an updated “Enforcement Guidance” memo on this topic in April of 2012. This past June, the EEOC filed two lawsuits against employers alleging that the employers’ respective criminal background policies violated Title VII. The lawsuits both seem to highlight the EEOC’s increased interest in the potential discriminatory impact of employers’ use of criminal records in employment decisions.

In EEOC v. BMW Manufacturing Co., LLC, pending in the U.S. District Court of South Carolina, the EEOC alleges that BMW’s background check policy disproportionately screened out African-Americans and that the policy is not job related or consistent with business necessity. The second suit, a nationwide lawsuit pending in District Court in Chicago, EEOC v. Dolgencorp (which does business as Dollar General), addresses discrimination charges filed by two rejected black applicants. That suit alleges that Dollar General conditions its job offers on criminal background checks and that the policy results in a disparate impact against blacks.

Indiana law

States, including Indiana, are also showing an increased interest in this area. Though there is no federal law or law in Indiana prohibiting employers from using criminal background information in the hiring process, a new state background check law includes several provisions aimed at limiting the types of information that may be disclosed to employers in Indiana.

Effective July 1, 2013, House Enrolled Act 1033 (2012) permits Indiana residents with restricted or sealed criminal records to state on an employment application that they have not been adjudicated, arrested or convicted of the offense included in the restricted records. On the flip side, the new law prohibits employers from asking about sealed and restricted criminal records, and courts are prohibited from disclosing information related to certain infractions. For example, a court cannot disclose information related to an infraction (which generally includes traffic citations and other minor violations) when the individual has satisfied the judgment and five years has passed since that satisfaction. Criminal history providers may be penalized for violating this law, including up to $1,000 for a first violation, up to $5,000 for a second violation, actual damages, liquidated damages, and costs and attorney’s fees. The text of the bill can be found at: http://www.in.gov/legislative/bills/2012/HE/HE1033.1.html.

Appropriate use of criminal history information

While Indiana law and the EEOC’s Enforcement Guidance provide clear guidance on certain prohibited conduct, many employers are still unclear on what they can and should do to appropriately use criminal history information in the hiring process. In its Enforcement Guidance, which can be found at www.eeoc.gov/laws/guidance/arrest_conviction.cfm, the EEOC concludes that employers cannot exclude an applicant from employment based on an arrest record alone. The EEOC also recommends that “employers not ask about convictions on job applications and that, if and when [employers] make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Policy validation under the EEOC’s Enforcement Guidance

The EEOC’s Enforcement Guidance goes on to suggest two methods under which an employer may be able to “validate” that its background check policy and use of criminal records to exclude individuals from employment is job related and consistent with business necessity.

The first involves validation using Uniform Guidelines on Employee Selection Procedures, found at 29 C.F.R §1607. However, the EEOC seems to acknowledge that this particular method is currently unworkable given the limited amount of empirical data on the links between certain conduct, criminal histories and job performance. As a result, most employers will likely need to rely upon the second method to determine whether its policies and practices are job related and consistent with business necessity.

Under the second method proposed by the EEOC, an employer first develops a “targeted screen” that considers, at a minimum, the nature of the crime, the time elapsed since the offense or completion of the sentence, and the nature of the job. After an applicant has been preliminarily disqualified by the screen, the employer conducts an individualized assessment to determine whether the screen, as applied, is actually job related and consistent with business necessity.

For example, if employer XYZ determines that any individual who has been convicted of embezzlement in a business setting in the last five years should be preliminarily disqualified from a job as an accounting department manager, XYZ has likely created a reasonable “targeted screen” that takes into account the three factors required by the EEOC. However, when applicant John Doe applies for an accounting department manager position and is preliminarily screened out because of his four-year-old embezzlement conviction, XYZ must then talk with Mr. Doe and conduct an individualized assessment.

The EEOC provides a list of criteria that employers should consider in the course of an individualized assessment: whether the individual identified in the report is the same individual who has applied for the position; the facts or circumstances surrounding the conduct; the number of offenses; older age at the time of conviction or release; evidence that the individual has performed the same type of work successfully post-conviction; the length and consistency of employment history before and after the conduct; rehabilitation efforts (like education or training); employment or character references or other information regarding fitness for the position; and whether the individual is bonded under a state or local bonding program. Only after considering all of these factors should XYZ make its ultimate decision as to whether or not to hire Mr. Doe.

Simple, right? Not quite. As interest grows in this area and as the courts involved hand down decisions on related cases, additional guidance and examples should be forthcoming. In the meantime, all attorneys, especially those who advise employers, should familiarize themselves with the EEOC’s Enforcement Guidance and HEA 1033 (2012).•

__________

Katherine G. Erdel is a member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group, focusing her practice in the areas of discrimination defense, wage and hour advice, general workplace policies, and employment agreements and covenants not to compete. Kate regularly advises clients in these areas and is familiar with background checks, pre-employment inquiries and other employment best-practice issues. Opinions expressed are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

ADVERTISEMENT