Lipnic Says EEOC Intends to Combat Hiring Barriers, Explore Accommodation

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By Jay-Anne B. Casuga  

The Equal Employment Opportunity Commission's current enforcement priorities include eliminating hiring barriers, exploring emerging workplace issues, and examining employer compensation practices, EEOC Commissioner Victoria A. Lipnic said at an April 24 conference.

Lipnic said EEOC established these priorities and others in its FY 2013-2016 strategic enforcement plan, which commissioners approved 3-1 in December 2012 (30 HRR 1377, 12/24/12).

In regard to hiring barriers, Lipnic discussed employers' use of applicant screening tools, such as credit history and criminal background checks, that might have a discriminatory disparate impact on certain protected groups.

Speaking at the inaugural compliance symposium of the OFCCP Institute, Lipnic also highlighted EEOC's interest in developing issues related to the Americans with Disabilities Act, and in enforcing equal pay laws.

The institute provides training programs for federal contractors in complying with equal opportunity, nondiscrimination, and affirmative action laws enforced by agencies such as EEOC and the Labor Department's Office of Federal Contract Compliance Programs.

Credit History, Bias Link 'Highly Debatable.'

Lipnic observed that EEOC over the past several years has held a number of public meetings on credit history and criminal background screening for employment purposes.

Although it could be argued that using credit screens in hiring might have a disparate impact on women and minorities, Lipnic said, the contention is “highly debatable.”

In terms of a link with discrimination, “nowhere near” as much research has been done on credit screens as on criminal background screens, she said.

Although EEOC has highlighted the topic of credit history screening, Lipnic pointed out that the agency has litigated the issue in only two cases in the past few years: EEOC v. Kaplan Higher Education Corp. (N.D. Ohio, No. 10-2883) and EEOC v. Freeman (D. Md., No. 09-02573).

Lipnic said litigating Kaplan “has not gone particularly well for EEOC.” In that case, EEOC brought a class action alleging that Kaplan's use of credit reports in hiring for certain positions had a disparate impact on black applicants.

Prior to ruling on the merits, a federal district court in Ohio trimmed EEOC's class claims based on Title VII of the 1964 Civil Rights Act's 300-day limitations period (29 HRR 512, 5/16/11). It also granted a discovery motion filed by Kaplan that required EEOC to provide information on the agency's own use of credit reports as part of the background checks used to hire commission employees (30 HRR 903, 8/20/12).

The district court ultimately ruled for Kaplan in January (117 FEP Cases 348; 31 HRR 102, 2/4/13). Lipnic said the commission has yet to make a decision on whether to appeal the case.

Meanwhile, the Freeman case, which involves allegations that an employer's use of credit histories and certain types of criminal arrests and convictions as hiring criteria has a disparate impact on black, Hispanic, and male job applicants, remains pending in a federal district court in Maryland.

Additional Guidance Needed on Criminal Histories.

Turning to criminal history checks as an applicant screening tool, Lipnic said EEOC updated its enforcement guidance on the issue last April (30 HRR 453, 4/30/12).

According to the guidance, an employer may avoid disparate impact liability if it demonstrates that an exclusion based on criminal history is job-related and consistent with business necessity.

Lipnic said EEOC suggests that employers create a “matrix” of their available jobs and the types of criminal offenses that would screen out applicants for those positions, and then conduct an “individualized assessment” to allow job seekers with criminal backgrounds to explain themselves.

The commission “needs to do more work” to help employers comply with that process, Lipnic said. She added that such employer assistance could take the form of fact sheets or question and answer documents.

“We need to do a little more to help people understand from a compliance perspective, and not just look for opportunities to litigate,” she said.

Lipnic acknowledged that certain employers, particularly federal contractors, might be required by federal law to conduct criminal background checks on applicants, who in turn may be required to obtain government security clearances. She pointed out that EEOC's guidance states that compliance with federal law is a defense to a charge of discrimination based on the use of criminal histories.

“It's a 'get out of jail free' card, to use a bad pun,” she said.

However, she added that EEOC also should explore the possibility of granting “safe harbor” to employers in other situations, and that agency officials have had “some discussions about it internally.”

She presented a hypothetical in which an employer posts a job opening, establishes an appropriate job/criminal offense “matrix,” conducts individualized assessments where necessary, and ends up with three equally qualified candidates--one of whom has a criminal background. The employer may decide to hire a candidate without a criminal history, she said.

“What happens at that point?” she asked. “It seems the employer has done everything we have asked it to do.”

In such a situation, Lipnic said she thinks safe harbors could be “a good thing.”

Emerging Accommodation Issues, Equal Pay Action.

Another EEOC priority highlighted by Lipnic focused on addressing emerging employment law issues.

For example, since the 2008 ADA Amendments Act generally settled statutory coverage issues on whether an individual has a disability under the ADA, she said she expects case law to “shift much more robustly” to reasonable accommodation.

EEOC recently has been considering the issue of leave as a reasonable accommodation, she said, and held a public meeting on the topic in June 2011 (29 HRR 623, 6/13/11).

The agency also is exploring the issue of reasonable accommodation for pregnancy-related disabilities, she said. Although pregnancy itself is not a disability, Lipnic said, a pregnancy-related impairment, such as a lifting restriction, might be a disability.

Other emerging issues include applying Title VII's safeguards to transgender employees and protecting employees over 50 from age discrimination in hiring, she said.

In addition, Lipnic said EEOC is “looking for opportunities” to examine employer pay practices.

She said the commission requested a National Academies of Sciences study on the ability of federal agencies to collect employee compensation data from employers.

NAS released the study results last August, and provided six recommendations to federal agencies. The recommendations included preparing a comprehensive plan for using the data before initiating any data collection; having an independent contractor conduct a pilot study to test the proposed collection; and evaluating employer costs and burdens.

Lipnic said the recommendations currently are under discussion at EEOC. In the meantime, she said, the agency is exploring the possibility of bringing more Equal Pay Act cases.

By Jay-Anne B. Casuga