I’ll open this post with a haiku. Because, I feel like we could all use a haiku.
For HR, what will he do?
Not a stinkin’ clue!
(And if you want to guest blog on an employment-law topic at The Employer Handbook? Email me).
If you follow me on Twitter (@Eric_B_Meyer), you saw I broke the news last Friday that the Fourth Circuit Court of Appeals (here) joined the Sixth Circuit (here), in excluding expert testimony from the U.S. Equal Employment Opportunity Commission on how certain background checks may have a disparate impact on certain protected classes.
Yesterday, at the Ohio Employer’s Law Blog, Jon Hyman quoted the money shot from the recent Fourth Circuit opinion. Ultimately, the Fourth Circuit found the EEOC’s expert testimony to be “fatally flawed in multiple respects.”
While two circuit courts have thrown shade at the EEOC for its background check crusade — #THEREWILLBEHATERS — this does not mean that employers are in the clear. Consider first, that the EEOC’s Strategic Enforcement Plan lists Eliminating Barriers in Recruitment and Hiring as its number one priority. And the word I hear is that the EEOC, which, too runs background checks, is going to continue its war on criminal and credit checks until the Supreme Court weighs in.
Monday kinda sucked for the EEOC.
The agency that made scrutiny of employee background checks a top priority under its current Strategic Enforcement Plan has been ordered by a federal court to turn over its own background check policy to an employer whom it is suing for a criminal background check policy that allegedly had a disparate impact on black employees.
*** smiles, grinds teeth, and inhales deeply ***
More after the jump…
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Across the country, many states and localities have enacted ban-the-box legislation. In a nutshell, ban the box means that employers cannot inquire about an applicant’s criminal history until after the first job interview.
For example, Philadelphia has ban the box. The Commonwealth of Pennsylvania does not.
Still, Pennsylvania does have the Criminal History Record Information Act. But, indeed, a Pennsylvania federal court ruled on Wednesday that the Act and ban the box are two separate things: