EEOC

On April 25, 2023, four federal agencies — the Department of Justice (“DOJ”), Federal Trade Commission (“FTC”), Consumer Financial Protection Bureau (“CFPB”), and Equal Employment Opportunity Commission (“EEOC”) — released a joint statement on the agencies’ efforts to address discrimination and bias in automated systems. Continue Reading DOJ, FTC, CFPB, and EEOC Statement on Discrimination and AI

By Lindsay Burke and Brian Fitzpatrick

On March 10, 2014, the EEOC and the FTC issued joint guidance on how the anti-discrimination laws and the Fair Credit Reporting Act (“FCRA”) apply to background checks performed by employers for employment application purposes. This guidance is published in two documents, one directed at employers and the other directed at employees and applicants, and aims to provide high-level practical assistance and answers to commonly asked questions that arise during the application process.  The pamphlet directed to employers builds off of the EEOC’s April 25, 2012 guidance regarding employer use of criminal history information, which we summarized here, and addresses the request for, appropriate use of, and disposal of such information.

Employers are reminded of their obligation to treat all applicants and employees equally and to refrain from performing background checks in a selective manner, where that decision is or could be perceived to be based on protected characteristics, including medical history (which implicates genetic information). When using background information to make employment decisions, employers must apply the same standards to all individuals and be cautious of basing employment decisions on background problems that may be more common among people of certain protected categories. If a certain type of background check disproportionately impacts members of a protected group, it must be job-related and consistent with business necessity. The guidance does not explain, however, how employers are to discern whether these warnings apply, nor does it mandate that employers conduct any research to investigate these possibilities. Continue Reading EEOC and FTC Issue Joint Guidance on Background Checks Performed by Employers

The Equal Employment Opportunity Commission has issued updated guidance concerning employer use of criminal histories.  As many as 92 percent of employers use criminal background checks as part of their hiring processes. 

The EEOC’s updated guidance generally provides that the EEOC will regard as suspect blanket or automatic exclusions of individuals from employment or promotion simply based on an individual’s criminal record, particularly when the individual is an African American or a Hispanic male.  However, the EEOC indicates that it will accept as a defense to a statutory discrimination claim an employer’s showing that the exclusion is job-related and consistent with business necessity and that the employer has made an individualized determination that hiring or promoting the individual in question would be likely to create a risk of improper conduct that would be detrimental to the employer’s business or workplace.  Specifically, the guidance indicates that, in making individualized assessments, employers should consider the following three factors:Continue Reading EEOC Issues Updated Guidance Regarding Employer Use of Criminal History; Considers Use of Social Networking Information