EEOC May Sue to Enforce Title VII Record-Keeping Duties

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By Kevin McGowan

June 29 — The Equal Employment Opportunity Commission may pursue a lawsuit alleging a Pennsylvania-based employer that uses a criminal background screen in hiring isn't keeping the records needed to determine if its screen discriminates against racial minority and male applicants, a federal district court ruled ( EEOC v. Crothall Servs. Grp., Inc. , 2016 BL 206871, E.D. Pa., No. 15-3812, 6/28/16 ).

The EEOC has standing to sue even if it hasn't identified an individual who has suffered or will suffer an injury as a result of Crothall Services Group's alleged record-keeping violations, the court said.

Rather, it's sufficient that the EEOC alleges Crothall is violating Title VII of the 1964 Civil Rights Act and an agency record-keeping regulation by not maintaining information on the effects of a test used in hiring, wrote Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania.

The ruling is a victory for an agency that has made removal of discriminatory barriers to hiring a strategic enforcement priority. The EEOC's 2012 enforcement guidance on employers' use of arrest and conviction records in hiring said the practice could have adverse impacts based on race, ethnicity and sex.

Title VII gave the EEOC authority to issue the record-keeping regulation at issue, the court said. Under that regulation, Crothall must keep and preserve records on the effects of its employee selection procedures and provide that information to the agency on request, the court said.

The court rejected Crothall's argument that the record-keeping language found in the Uniform Guidelines on Employee Selection Procedures is “permissive” and can't support an EEOC lawsuit to compel compliance.

EEOC Says Records Lacking

In 2010, EEOC Commissioner Chai Feldblum (D) filed a “commissioner's charge” alleging reason to believe that Crothall's use of criminal history assessments in hiring has an unlawful disparate impact on black, Hispanic and male applicants.

The EEOC in 2013 filed a subpoena enforcement action against Crothall, a Wayne., Pa., company that provides facility support services to hospitals and health-care providers.

The EEOC said that in trying to enforce the subpoena, it discovered Crothall fails to make or keep records that would disclose the effects of its criminal background screen on persons identifiable by race, sex or ethnicity.

The EEOC in 2015 sued Crothall for alleged violations of Title VII Section 709(c) and the record-keeping rule codified at 29 C.F.R. § 1607.4(A).

The EEOC asked the district court to order Crothall to comply fully with its record-keeping obligations, specifically regarding the employment impacts of its criminal history assessments.

Whether Crothall has maintained sufficient records to meet the regulatory requirements is a factual issue that can only be determined after discovery, the court said.

It denied the parties' competing motions for judgment, but said Crothall and the EEOC can raise the issue again once discovery is completed.

EEOC attorneys in Baltimore and Philadelphia represented the agency. Seyfarth Shaw LLP represented Crothall.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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