The Equal Employment Opportunity Commission (EEOC) continues to
challenge employers' seemingly legitimate reliance on
background checks as part of the hiring process. Recent
developments indicate that the heat is intensifying both on
employers and the EEOC.
On August 9, 2013, a Maryland federal court dealt the EEOC a
significant loss in a class action case brought by the EEOC,
challenging an employer's use of criminal background and credit
history in making hiring decisions. Undaunted, however, the EEOC
continues to pursue two newly filed, high-profile cases against BMW
and Dollar General, challenging their use of background checks in
the hiring process. In all three cases, the EEOC takes the position
that the employer's process for conducting background screens
has a disparate impact against minorities and therefore constitutes
unlawful race discrimination.
Through its words and its actions, the EEOC has indicated that
scrutinizing background check procedures will be one of its highest
enforcement priorities in 2013. The EEOC does not allege that
merely conducting background checks is unlawful, but takes the
position that, in most cases, automatically excluding applicants
with certain types of convictions is improper. Rather, the EEOC
advocates an individualized inquiry that takes into account such
factors as the amount of time that has passed since a conviction,
the nature of the job applied for and the nature of the
Several states and localities also have recently passed "ban
the box" legislation. These laws place additional restrictions
on when in the application process employers may ask applicants
about criminal convictions.
In light of the EEOC's aggressive position on this issue and
the emergence of state and local "ban the box" rules,
employers are strongly encouraged to take a fresh look at their
existing policies and procedures for conducting background checks.
Employers that proactively revise their procedures can make
significant strides toward avoiding the excessive costs inherent in
defending a discrimination lawsuit, especially a potential class
action, as well as avoiding liability under state and local
"ban the box" laws.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
On February 10, 2015, in United States v. Patel, the Seventh Circuit Court of Appeals ruled that a physician makes a "referral" within the meaning of the federal health care programs Anti-Kickback Statute (AKS).