Background Check Summary

1. Background Check Summary EEOC updated guidance on use of criminal background checks (4/25/2012): Link Basically, the EEOC Guidelines recommend considering: 1) the nature and severity of the offense, 2) the amount of time that has passed since the conviction (or completion of one’s sentence), and 3) the nature and type of job sought. Also, recommended individualized assessment of applicants narrowly tailored to nature of job requirements and not collecting such data until later in the process (e.g., NOT on application forms) Proposed individual assessment of applicants and EEOC Settlement with Pepsi (2012) for discriminatory use of criminal background checks Link (e.g, excluded over 300 people for minor offenses, even arrests, that had no bearing on job requirements)

2. EEOC v. Kaplan Higher Learning EEOC claimed adverse impact on Black applicants due to use of credit reports How did Kaplan use credit history? • Credit checks were limited to certain sensitive positions (to assess if applicants were under financial stress) • Credit histories of applicants given a conditional offer were reviewed by an outside credit firm for one of 10 “flags”) • If flags were present, credit history was reviewed by controller at Kaplan and flags could be “overruled” What was Kaplan’s defense to the charges of adverse impact? • Other (control) variables not considered by EEOC (e.g., type of job applied for) • Use of subjective and scientifically unsound (Daubert standard) determination of race (e.g., process not peer reviewed)

3. EEOC v. Freeman • EEOC charged that Freeman was guilty of adverse impact: • Discriminated against Black applicants by using credit history data • Discriminated against Black applicants by using criminal records But, judge ruled that: Data was flawed (e.g., errors, missing data) EEOC failed to identify a specific selection practice that caused the adverse impact

4. Updated OFCCP Guidelines on Section 503 of RE-73 [Effective March 2014] [see Dunleavy & Gutman, TIP, 2014, 51(3), 173-181] • For organizations with 50 employees/$50,000 • Key provisions: • 7% hiring goal for individuals with disabilities by job group • Requires applicants to self-identify disability status

5. Portion of Self-Disclosure Form Some Issues: Wording above on disability question (present vs. past; applicant knowledge of what IS a legal disability; “having” a disability with those not wishing to identify as having a disability Reading level of form (“very confusing” content – 21 on Reading Ease Formula; reading level is at college graduate level

6. Protected Veterans and OFCCP Requires contractors to compare percentage of protected veterans (at establishment level) with establish benchmarks (OFCCP-derived % or contractor-specific). Issues: Potential adverse impact on females (more men in military); Veterans status as a defense? Associated Builders and Contractors filed injunction against OFCCP regulations (e.g., wasteful an burdensome data collection and utilization analyses with no statutory authority regulations; arbitrary and captious implementation)

7. Sandifer v. U.S. Steel Corporation: The Court will consider what constitutes “changing clothes” under the Fair Labor Standards Act (FLSA). Under §203(o) of the FLSA, an employer need not compensate a worker for time spent changing clothes if that time is excluded from compensable time under a collective bargaining agreement. However, also under the FLSA, an employee must be paid for engaging in a “principal activity,” and putting on and taking off safety gear required by the employer may be a principal activity if it is an integral and indispensable part of the activities for which the worker is employed. In this case, employees at U.S. Steel Corp in Gary, Indiana brought suit under the FLSA claiming that they should be compensated for time spent changing into their work gear and traveling back and forth to the locker room. They argued that what they change into—flame retardant pants and jacket, work boots, hard hat, safety glasses and ear protection—was safety gear, not clothing as contemplated by the FLSA. The Court of Appeals disagreed and denied the claims. This case may clarify when an employer must pay employees for putting on and taking off safety gear at the beginning and end of their shifts.

8. Madigan v. Levin: Whether the Age Discrimination in Employment Act (ADEA) precludes state and local government employees from bringing constitutional claims of age discrimination under 42 U.S.C. § 1983. In a departure from the holdings of numerous other courts of appeal, the Seventh Circuit held that such constitutional claims are not precluded. This case will determine whether state employees have a federal damages remedy for age discrimination claims because state immunity under the Eleventh Amendment prevents state employees from recovering damages under the ADEA. Kimelv. Florida Board of Regents: Does the Age Discrimination in Employment Act of 1967 abrogate (cancel, abolish) states' Eleventh Amendment immunity? No. Such abrogation exceeds Congress' authority under the Fourteenth Amendment. Public employees, such as public university professors, may not sue public institutions, including colleges and universities, under the ADEA for damages [Can sue under State laws]

9. Schuette v. Coalition to Defend Affirmative Action: The Court will revisit the topic of affirmative action to determine whether a voter-approved ban on the use of affirmative action is constitutional.  The case involves a challenge to Proposal 2, an amendment to the Michigan Constitution approved by voters in 2006, which bans the use of racial preferences in admission decisions for public universities in Michigan. The Sixth Circuit Court of Appeals struck down the ban as a violation of the Equal Protection Clause. In doing so, it created a split among the circuits to have considered this issue (e.g., 9th Circuit upheld a similar voter-approved ban in California)