Sean Higgins, Washington Examiner:
The Equal Employment Opportunity Commission told a district court that it should not have to reveal its own policies regarding criminal background checks because that information is not relevant to the discrimination cases it files against private companies.
Background from Jon Hyman, Ohio Employer’s Law Blog:
This argument [advanced by automaker BMW, whose policies the EEOC is challenging] is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:
If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.
Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.
And a Sept. 17 House subcommittee hearing on EEOC adventurism, reported at Employee Screen, includes this on possible reforms:
Proposed legislation discussed at the hearing included H.R. 4959, the “EEOC Transparency and Accountability Act”, which would require the EEOC to maintain up-to-date information on its website regarding charges and actions brought by the EEOC; H.R. 5422, “Litigation Oversight Act of 2014”, which would require the EEOC to approve by a majority vote to begin or intervene in litigation involving multiple plaintiffs or systemic discrimination; and H.R. 5423, “Certainty in Enforcement Act of 2014”, which would protect employers from EEOC action in cases that specifically involve criminal background checks required by state or local law. …
[The subcommittee chair, Michigan Republican Rep. Tim] Walberg noted that 19 stakeholders representing a wide variety of constituents signed a letter supporting all three bills, which included the National Association of Professional Background Screeners (NAPBS), SHRM, and other professional, healthcare, retail and food service organizations.
Lawyers are warning that a bill to restrict consideration of criminal records in business hiring now pending in New York City would be even more burdensome to business than similar bills enacted in other cities and states, applying, for example, to businesses with as few as four employees, a lower threshold than usual. [Crain's] The bill prohibits inquiry about criminal record until after a provisional job offer is made, at which point a reluctant employer must withdraw the offer, painting a large “Sue Me” target on its chest.
To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, [Reed Smith's Mark] Goldstein said….
Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time….
In the bill’s current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.
More: Nick Fishman, Employee Screen on unusually burdensome provisions of San Francisco “ban the box” law (“Employers can’t just sit back anymore and think that these laws are benign. At the least, they are creating an administrative nightmare. At worst, the plaintiff’s attorneys are standing by waiting for your first misstep.”)
Annals of European employment law: “The Irish arm of supermarket giant Tesco has been ordered to pay a convicted drug dealer €11,500 for unfair dismissal.” The Employment Appeals Tribunal (EAT) found that the market should have considered sanctions less severe than dismissal given that the employee had cooperated with its process and that a manager admitted there was no evidence of public awareness of the employee’s legal troubles, which eventuated in a guilty plea and a suspended jail sentence. [Evening Herald (Ireland)]
I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is
all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.
The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.
For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.
It must not have been easy to find an appointee even farther left than the departing Thomas Perez to head the Justice Department’s Civil Rights Division, but the search eventuated with apparent success in the Obama Administration’s naming of former NAACP Legal Defense Fund official Debo Adegbile. While his confirmation is a foregone conclusion under the Senate’s new simple-majority Harry Reid rules, Republicans may still make an issue of Adegbile’s backing of the EEOC in its controversial campaign to require employers to hire felons and limit the use of criminal background checks before employment. [Byron York, Washington Examiner] Update: nomination fails narrowly in Senate, opposition driven substantially by nominee’s involvement in public efforts on behalf of convicted Philadelphia cop-killer [Politico]
Finally addressing the entrenched social problem of architect-perpetrated crime? Or just the security state running mindlessly forward on its own momentum? David Lancaster of the Texas Society of Architects told a trade newspaper that his group “believed fighting the legislation would be ‘futile.'” [Mike Riggs, Atlantic Cities]
The federal EEOC has been helping prepare the ground with guidance indicating that it legally disfavors asking job applicants about criminal records across a wide range of situations. Meanwhile, activists in places like San Francisco seek local laws banning the practice in private employment, following successful campaigns to end it in the public sector. [San Francisco Chronicle]
According to the Chicago Sun-Times, an Illinois prison official “with a lengthy criminal history” has returned to the state payroll despite a record of “lewd and inappropriate emails” on the taxpayers’ dime and falsifying an earlier job application [Chicago Sun-Times]:
…Still, Gov. Pat Quinn’s administration struck a settlement with McCraven and his union, the American Federation of State, County and Municipal Employees….
In June, [after withdrawing a lawsuit] he then dropped a union grievance and accepted a 10-day suspension, got six months of back pay and was transferred to the job he now holds as senior adviser to the chief of parole with the Illinois Department of Corrections.
Asked to explain why McCraven was allowed to stay on the state payroll, the Quinn administration cited the potential financial costs of losing a grievance case. …
The Chicago Sun-Times reported Monday that McCraven is working for the state prison system despite being arrested “at least” 24 times on charges including arson, illegal gun possession, attempted robbery, drug possession and aggravated assault.