New Guidance for Employers from EEOC and FTC
Labor & Employment @lert
Date: March 21, 2014
EEOC Religious Garb & Grooming Publication
On March 6, 2014, the Equal Employment Opportunity Commission (EEOC) issued a new publication, Religious Garb and Grooming in the Workplace, Rights and Responsibilities, as well as a related fact sheet, both addressing an employer’s obligations related to religious dress and grooming under Title VII of the Civil Rights Act of 1964.
The guidance reminds employers that Title VII may require them to make exceptions to their normal policies and expectations regarding dress and grooming to accommodate sincerely held religious beliefs, observances or practices, unless doing so would pose an undue hardship on the company’s operations. An “undue hardship” for this purpose means something more than a de minimus burden but is a less stringent standard than that under the Americans with Disabilities Act, as amended. For example, a manufacturing company that requires production workers to wear a mandatory pant uniform would need to have evidence that an employee’s request to wear a close-fitting long skirt for religious reasons would pose a safety risk around the machinery to demonstrate an undue hardship exists.
The EEOC also cautions employers that customer preference is not a defense to a religious discrimination claim. Actions such as a sales organization refusing to assign an employee to a position that requires customer contact, a retailer keeping an employee out of public view, or a staffing agency not assigning an employee to a particular customer due to the customer’s (actual or perceived) discriminatory preferences are problematic under Title VII.
Managers and human resources personnel should understand that Title VII not only protects an employee’s sincerely held beliefs, observances and practices of traditional organized religions, but also religions that are new, uncommon, not part of a formal church, with small followings, and which may seem illogical or unreasonable to others. Training employees and managers on the company’s obligation to accommodate sincerely held religious beliefs and the company’s anti-harassment policy and reporting mechanism is essential to preventing unlawful harassment, discrimination and retaliation in the workplace.
EEOC/FTC Joint Guidance on Background Checks
On March 10, 2014, the EEOC and Federal Trade Commission (FTC) jointly issued guidance for employers regarding use of background checks, outlining both substantive considerations under federal discrimination laws and the procedural requirements under the Fair Credit Reporting Act.
The EEOC reminded employers to be consistent in seeking background information, particularly criminal histories. Employers should ask for the same information from all candidates for a given job at the same step in the process, and should not engage in disparate treatment by requesting the information from members of a certain race, national origin or other protected class, and not others who are similarly situated.
Due to disparate impact concerns, employers are encouraged to review and modify their background check policies and procedures to ensure they are only excluding candidates with those convictions that are job related and consistent with business necessity. A generic exclusion of all candidates with any felonies in the last seven years may not be targeted enough to withstand scrutiny, depending upon the employer, industry and job in question. Rather, an employer’s policy should take into account the nature of the offense, the severity of the offense (felony vs. misdemeanor), and how long ago the conviction occurred (or the individual was released from prison), as well as the nature of the business and position in question. Also, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin or another protected characteristic, and does not accurately predict who will be a responsible, reliable or safe employee. In that case, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity,” subjecting an employer to a discrimination claim.
Procedural Requirements under the FCRA
The FTC reminded employers of their obligations under the FCRA to provide applicants and employees a standalone written disclosure form, separate from the application, notifying them that the employer may obtain background information and use the information to make employment decisions. The employer must also obtain the applicant’s written authorization prior to requesting background information, which can be part of the disclosure form.
Before taking adverse action based (in whole or in part) on an individual’s background report (such as a criminal history, credit report or education verification) obtained from a consumer reporting agency, the employer must provide the individual with a pre-adverse action notice, as well as a copy of the consumer report and a copy of the “Summary of Your Rights Under the Fair Credit Reporting Act.” The notice must provide the individual with a reasonable time (often considered five business days) to review the report and explain any negative information.
If adverse action is taken thereafter, the employer must provide the individual with an adverse action notice, which must contain certain specific information, including:
- That he or she was rejected for employment because of information in the report
- The name, address and phone number of the company that sold the report
- That the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it
- That he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days
State Laws: Additional Substantive Limitations & Procedural Requirements
Many states have passed laws imposing restrictions on an employer’s use of background checks – particularly use of criminal records. Several states have FCRA-like laws that require additional notices and disclosures prior to obtaining a consumer report. Some states prohibit employers from asking about certain types of criminal records or dictate at which point in the application process this information can be solicited. Employers operating in multiple states need to be aware of the various laws and ensure their employment application, background check disclosure and authorization forms, and hiring practices are compliant with federal and applicable state law.
Using a Background Check Vendor?
An employer may elect to engage an outside agency to perform background checks using the employer’s criteria and perhaps even to issue the FCRA and state law notices. Because the employer remains responsible for its own compliance with the FCRA and state law, it is imperative that the employer have its legal counsel review and approve the disclosure forms and pre-adverse and adverse action notices that the vendor will issue on the employer’s behalf. Periodic audits of the vendor’s practices are also recommended to ensure the notices are being issued on a timely and consistent basis and to help avoid class-action litigation.
FOR MORE INFORMATION
For more information, please contact:
Heather M. Muzumdar
M. Scott Young
or any member of our Labor & Employment group.
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