In a typically busy few weeks, the Equal Employment Opportunity Commission decided it would not be imposing additional furloughs, and agency attorneys warned employers about the perils of using criminal background checks and social media information in hiring and other decisions.

News of the commission's determination that employees did not need to take three more unpaid furlough days during fiscal year 2013--in addition to the five days they have already been forced to take--came in an announcement from the American Federation of Government Employees' National Council of EEOC Locals No. 216, which represents EEOC employees. The commission's decision was based on an analysis conducted by the agency's chief financial officer.

At a July 17 EEOC-sponsored workshop, Tanisha Wilburn, a senior attorney adviser in the agency's Office of Legal Counsel, warned employers about having a policy or practice of conducting criminal background and arrest record checks as part of their hiring process. Even if otherwise neutral, such a policy may expose an employer to liability for disparate impact discrimination if it disproportionately screens out or disadvantages a protected group and does not relate to the job in question or is not consistent with a business necessity. Such policies could discriminate against employees who are protected by Title VII of the 1964 Civil Rights Act, she said. Employers may open themselves to potential disparate treatment claims if they reject African American or Hispanic job applicants based on their criminal records, and then hire white applicants with similar criminal backgrounds, she added.

During a different session of the workshop, EEOC Assistant Legal Counsel Christopher J. Kuczynski advised employers to use caution when requesting and accessing employee information from social media accounts or as part of the Americans with Disabilities Act's reasonable accommodation interactive process. Employers that are not cautious run the risk of acquiring medical information protected by the Genetic Information Nondiscrimination Act.

The inadvertent acquisition of employee genetic information does not violate GINA, Kuczynski said. Nevertheless, he suggested, to be safe, employers should use the sample language provided in EEOC's GINA regulations in all notices and forms they send out seeking medical information about employees.

In addition, early this month, EEOC announced as part of its semiannual agenda that it plans to issue notices of proposed rulemaking to amend its joint regulations with the Justice Department and the Office of Federal Contract Compliance Programs pertaining to disability discrimination complaint processing. Among other things, the commission expects to revise the definition of certain terms, and to clarify the procedures for referring disability bias complaints and charges between the respective federal agencies.

Other EEO developments over the past few weeks include:

• The New Jersey Supreme Court ruling under the state's anti-discrimination law that it is not necessary for an employee claiming retaliation to show that a specific protected individual was victimized by the complained-of bias, and instead all that is required is evidence that the bias complaint was made in good faith.
• The Senate Committee on Health, Education, Labor, and Pensions voting to report to the full Senate legislation (S. 815) that would prohibit job discrimination based on an individual's sexual orientation or gender identity. 
• A  federal district court in Illinois deferring to EEOC in holding that union apprenticeship programs can be covered by the Age Discrimination in Employment Act.