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EEOC commissioners field questions about criminal background check guidance; speak of bipartisanship and more

June 3rd, 2012  |  Lisa Milam-Perez

“What was the reasoning behind not publishing the criminal background check guidance for public comment?” “How do you respond to comments that you created another protected class?” EEOC Commissioners Chai Feldblum and Victoria A. Lipnic gamely fielded these and other questions from an audience of employment lawyers and HR professionals at an “EEOC Update” session at the Minnesota CLE’s Upper Midwest Employment Law Institute on Tuesday, May 22.

Bipartisanship. Feldblum and Lipnic set the tone with opening comments about the great value placed on bipartisanship at the EEOC, offering a glimpse into the commission’s deliberations along the way. “Bipartisanship is built into the sinew of the commission,” Feldblum told attendees at an earlier session. Congress built in a structure in which three commissioners from one party and two commissioners from the other party would sit. “How far we implement that bipartisanship” is up to the commissioners, she said. Lipnic, a Republican, and Feldblum, a Democrat, both noted that the 2-2 party split resulting from the recent departure of Commissioner Stuart Ishimaru has made no difference to the work of the commission.

“Lipnic defaults to employers. I default to employees. But we both have taken an oath to enforce the law as enacted by Congress. As a result, I have voted for many ‘pro-employer’ positions and Lipnic has voted in favor of many ‘pro-employee’ positions.” In fact, she noted, “I can’t decide how I am going to vote until I hear from someone who has a default position in favor of employers (nodding toward Lipnic). This is how I learn.”

For example, Feldblum explained that the very first item sent up to her as a new commissioner was a regulation on the Genetic Information Nondiscrimination Act (GINA) “that would have been very restrictive.” Lipnic balked, and Feldblum ultimately concluded that the provision was not mandated by the statute. Although a commission lawyer said the measure would likely be upheld by a court, “I took an oath that I was supposed to implement the law as enacted by Congress,” Feldblum repeated. “So we didn’t vote for it.”

Notice and comment. This bipartisanship was on display as Feldblum and Lipnic responded jointly to pointed questions regarding the EEOC guidance on the use of arrest and conviction records in employment decisions (recently updated pursuant to the commission’s review of all of its guidances as part of its strategic plan, Feldblum noted). Responding to an audience member’s request for an explanation as to why the commission chose to forego notice and comment on the guidance, Lipnic explained, “The EEOC enforcement guidance is a subregulatory guidance document; it is not a regulation and not subject to public notice and guidance under the Administrative Procedure Act. There is no legal requirement that they be subject to public notice and comment.”

“The EEOC has had a background check policy and guidance since 1987,” Lipnic continued. “We had engaged in a public hearing.” She also noted that, having both worked in Congress, she and Feldblum had decided to keep the record open for two weeks after a public hearing on any topic so the public could comment. And many people submitted comments accordingly. “So I felt like there was a very fully developed record upon which we could then revise the longstanding guidance.”

“On Monday, Wednesday, and Friday, I absolutely think we should send subregulations for notice and comment. On Tuesday and Thursday, I’m not so sure,” Feldblum said, conceding her ambivalence. Adding to her colleague’s comments, she noted, “If we send notice and comment, we get Chevron defense. But if we issue subregulatory comment, we only get Skidmore deference. And I think it’s a good thing for the courts to take your views seriously. But even if not — and way before it gets to any court — notice and comment is important because it guides our investigators. That guidance affects your lives.”

“On the criminal guidance, though, this had been going on for years,” Feldblum said. “We held a hearing in 2008, a hearing in 2011, and more than 300 comments already had been received.”

Criminal background checks. Turning to a substantive discussion of the guidance itself — and in response, no doubt, to critics of the commission’s action — Feldblum drove the point home several times: “Instead of the EEOC just suing you, wouldn’t it be nice to have some guidance on what we think and why?”

The individualized assessment provision has proven a major sticking point for those who take issue with the revised guidance. “I cringed a bit to think of it as an ‘individualized assessment,’” Lipnic admitted. “I like to think of it as due process. Essentially, it requires notice to the individual, and an opportunity for them to get back to you. You don’t have to interview every single person to give them the opportunity to explain themselves [if a background check turns up a criminal record]. You merely provide them notice and ask them if they would like to provide you with more information.”

“I’ll acknowledge that the individualized assessment does require an additional step for the employer, but it [simply] means providing them notice similar to the kind of notice you would provide under the Fair Credit Reporting Act,” Lipnic added.

“I am someone who very much believes in cost-benefit analysis about recommendations, and I’m very practical about how the employer is going to implement this,” the Republican commissioner pointed out. “But those Green factors [which, in its new guidance, the EEOC advocates that employers use] have been there for a long time,” Lipnic pointed out. The “Green factors” were set forth in the Eighth Circuit’s 1977 decision in Green v Missouri Pacific Railroad, and include such considerations as the nature of the offense, the time period that has elapsed since the offense was committed, and the relationship of the offense to the job at issue. “If [the nature of an applicant’s past crime] is so fundamentally job-related, we do not expect you to have to explain. You won’t need to explain why the sex offender is not allowed to work in the day-care center. And if our district offices were pursuing those things, we would have a fit about it.”

“For the last 30-some years, you shouldn’t have had a requirement that says ‘in order to work for us, you have to have had no criminal record,’” Feldblum added, also downplaying the scope of the revisions. “Employers needed to have considered what types of crimes have a nexus to the job, and how far back you are willing to go. So now [under the revised guidance], someone has been run through a background check, and you’ve given someone notice that they’ve been bumped because something came back on their record. Now they get a chance to explain their story.”

There is no particular requirement as to what steps employers must take. “The one thing we require is a reasonable process in which you’ve taken in that information,” Feldblum said. “If we look and see that 300 people went through an employer’s process and no one made it through, we’d start to wonder if it was a reasonable process. But in the end, there is not a required result.”

New York State has had a law in place for a number of years that mandated an individualized assessment, and the agency looked to that model, Feldblum pointed out. “I’ll also note that a number of states have banned the box that says ‘check here’ if you’ve committed one of these crimes. We didn’t say you can’t do that under Title VII.”

Lipnic placed the recent agency action in its larger context. “We don’t just look at what is the pure application of the law; we sit as the policy makers. I understand that you may be looking at thousands of applicants, and you may have a system in place that is going to knock them out of the blocks right away. But if that’s the process we have in place, then people with criminal backgrounds will never be able to get a job. So I am willing to make this policy choice. Do we really expect that people who have been incarcerated should never have an employment opportunity again?”

A new protected class? Feldblum dismissed the notion that the revised criminal background guidance creates a new protected class, as an audience member suggested. “This is not a new protected class; the class is race or sex. For years, the law has been that if you have a neutral law that has a disparate impact on a class, such as Hispanics and African-Americans, and men — the burden of which is on the plaintiff or government agency to show by statistics — then the burden is on the employer using that neutral rule to justify it as job-related and consistent with business necessity. That’s what Congress decided. Congress could have decided to carve out someone [i.e., individuals with criminal backgrounds] from Title VII protection, but if they didn’t, it’s our job to enforce the law.”

“Whether the EEOC had this guidance document, or never had the 1986 guidance document, we still could have brought a case on criminal background screens based on disparate impact theory,” Lipnic added.

Transgender protections. Nor did the EEOC’s April ruling in Macy v Holder create a new protected class of transgender people, Feldblum said. “That would be like saying ‘I’ll hire Christians, I’ll hire Jews, but I won’t hire Christians who converted to Judaism. It’s not a new class; it’s an application of sex discrimination protections.

“What we said in Macy is landmark in that it’s going to govern all of our investigations. If someone is discriminated against based on transgender status, that’s discrimination based on sex, we’ve said. That’s huge in that now those folks can walk into the 54 EEOC offices and file a complaint. And we’ve already had two conciliations. On the other hand, it’s ho-hum, because courts have already said ‘you can’t discriminate based on gender or based on gender stereotyping.’ The gender stereotyping protection is robust. It’s not like you don’t get the protection just because you’re gay or because you’re transgender.”

In the end, Feldblum said, “this is just about treating people on their merits, with equal dignity and respect. And it may require educating our supervisors and coworkers. But that’s our job. It’s our collective job, whether you’re the HR person or just a resident of the United States of America.”

Religious discrimination. Feldblum was equally impassioned during an earlier plenary session on “Recent EEOC Activities on Religious Discrimination.” She spoke with candor about her commitment to the EEOC’s mission of protecting employees from religious discrimination and the rights of religious organizations to proselytize their faith. “As an ‘out’ lesbian I care passionately about gay rights. But I also care passionately about the right of religious organizations to teach that homosexuality is sinful.”

“Growing up as an orthodox Jew, where we couldn’t wear pants, I keenly understand that for people of religious faith, you can’t just tell them to ‘get over it.’ It’s either their job or their religion.” Feldblum believes that it’s especially important to protect the rights of those whose religious beliefs differ from the majority. “If we lived in a society where everyone had to wear a hijab, we wouldn’t have any background rules banning head covering,” Feldblum noted, adding, “Treating everyone the same when they are not the same to begin with is not equality.”

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