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Anti-Discrimination & Enforcement

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July 14, 2017
FTC Report: With Big Data Can Come Big Responsibility

The Federal Trade Commission (“FTC”) issued a report this month entitled, “Big Data: A Tool for Inclusion or Exclusion.”1 The theme of the report is that a company’s use of big data—be it in identifying and providing services to consumers or in the hiring and management of its workforce—may have both benefits and risks.  This article…

January 22, 2016
President Obama’s Order “Banning the Box” for Federal Employees is an Important Reminder to Review Hiring Policies

Last month, President Obama announced a new mandate to the federal government’s human resources department to “delay inquiries into criminal history until later in the hiring process.”  Specifically: The President has called on Congress to follow a growing number of states, cities, and private companies that have decided to “ban the box” on job applications. …

December 7, 2015
EEOC Settles Background Check Litigation with BMW, But Also Faces Steep Attorneys’ Fees in Freeman Case

After several high-profile setbacks in disparate impact discrimination lawsuits challenging criminal record screening policies,1 the EEOC has entered into a settlement (consent decree) in one of its few remaining cases, a settlement that includes payouts to individual employees in an amount up to $1,600,000.  Beyond this not insubstantial settlement amount, the consent decree also reflects the…

September 22, 2015
Update on Criminal Background Checks: Impact of EEOC v. Freeman and Ongoing Challenges in a Continuously Changing Legal Environment

The latest chapter in the ongoing saga of employment-related criminal background checks in the United States has been written, and one of the authors had some particularly strong words for the Equal Employment Opportunity Commission. On February 20, 2015, in Equal Employment Opportunity Commission v. Freeman,1 the U.S. Court of Appeals for the Fourth Circuit…

February 23, 2015
EEOC’s Race Discrimination Suit Against Janitorial Company Includes Background Check Allegations

The filing of a new discrimination lawsuit by the Equal Employment Opportunity Commission (EEOC) answers the question whether, after five years of intensive scrutiny, employers can breathe a sigh of relief in terms of screening job applicants based on criminal records.1  The new filing reveals that the EEOC remains interested in trying to use litigation…

July 7, 2014
Federal Court Grants Class Certification in Title VII Disparate Impact Suit Over Alleged Discriminatory Criminal Records Screening Policy

On July 1, 2014, the court granted class certification in a high-profile disparate impact discrimination case against the Census Bureau in federal court in New York based on its criminal record screening practices, Houser et al. v. Pritzker.  The plaintiffs are represented by a well-known New York class action law firm and not by the…

April 17, 2014
Sixth Circuit Upholds Dismissal of EEOC Suit Against Employer Screening Applicants Based on Credit History Information

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its updated enforcement guidance concerning how, in its view, Title VII of the Civil Rights Act of 1964 (Title VII) restricts an employer’s discretion to consider criminal records relative to employment decisions.1  The EEOC was scheduled to release at the same time its updated guidance…

August 12, 2013
Federal Court Dismisses EEOC Title VII Disparate Impact Suit Over Alleged Discriminatory Background Checks Without Trial

On August 9, 2013, a federal district court judge in Maryland dismissed, without a trial, the Equal Employment Opportunity Commission’s (EEOC) Title VII suit against Freeman over alleged discriminatory background checks based largely on fatal flaws in the EEOC’s expert report—described by the court as “an egregious example of scientific dishonesty.”1  The opinion acknowledges the…

June 12, 2013
Two New EEOC Criminal Record Lawsuits Underscore Important Strategic and Practical Considerations for Employers Conducting Background Checks

In March 2010, an employer successfully persuaded the Equal Employment Opportunity Commission (EEOC) to concede its disparate impact discrimination lawsuit against the employer based on its criminal record screening policies in a federal case in Michigan.1 The EEOC was ordered to pay $250,000 in attorney’s fees and $500,000 in costs, including expert witness fees.  In…

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