The Fourth Circuit yesterday affirmed a lower court decision that the EEOC could not go forward in a case challenging credit and criminal background checks.
The Equal Employment Opportunity Commission, charged with investigating workplace discrimination, sometimes takes a case to court itself. Most discrimination charges are left to the individual to pursue in court.
In this case, EEOC v. Freeman, the EEOC decided to follow up on one person’s complaint that the background check constituted illegal race discrimination. The theory goes that because minority applicants are more likely to have an arrest or criminal record, or poorer credit scores, the reliance on these checks can lead to racial discrimination. These theories have supported challenges to written tests or the requirement of a high school diploma, which tended to exclude applicants from a lower socioeconomic status. Courts therefore required employers to show that the tests or diploma requirement bear a reasonable relationship to the job duties.
Credit background checks must be related to job necessities under Maryland law. This law provides a floor of job-relatedness. The tendency of practices to favor white candidates, even though it is unintentional, can still support a race discrimination suit.
The EEOC had to show that the use of these background checks had a disproportionate effect on minority candidates. It hired a statistics expert who produced a terribly inadequate report. The expert’s report had errors, such as miscoding the relevant data, and double counting. The biggest problem was his “cherry-picking” data, all older data at that. The court had no trouble upholding the lower court’s decision tossing his work as unreliable. Without the statistics, the EEOC could not show the link between the practice and discrimination.
The concurring opinion pointed out the saddest aspect of this case: the EEOC’s reliance on an expert who had been criticized by other courts for his unusable reports, and its arguments that the court should let in the error-laden conclusions anyway.
A new settlement in an EEOC case brings to mind the intersection between old racial prejudices, subtle remainders, and the perceived preference of customers. The EEOC sued McCormick & Schmick, which occupies two nice waterfront spotsin Baltimore’s inner harbor. The case started in 2008 (yes) but involved a large number of claimants. The suit alleged that the restaurant chain persistently routed African American employees and applicants to back of the restaurant jobs.
The suit alleges that the restaurants ads were nearly devoid of minorities, and so were the dining areas. The settlement sets up a fund of $1.3 million for claimants who were denied jobs as wait staff, bussing staff, bartenders, or hosts at the restaurants. It also requires revamping of procedures, monitoring and review of the hiring numbers.
The case never went to trial, but with that level of settlement I have to assume that the EEOC had a fair amount of good evidence that it kept the customer experience fairly minority-free. At some level of a pattern, it is fair to infer that intentional discrimination is going on. Customer preference, whether real or perceived, does not provide an excuse under the anti-discrimination law. These kinds of practices serve to perpetuate a kind of mental segregation. When an upscale restaurant subconsciously conveys the impression that “this is a white place,” we drift backwards.
This year, the 50th anniversary of the passage of the Civil Rights Act of 1964, we should celebrate integration in all areas of our lives.
The Equal Employment Opportunity Commission filed suit against Freeman, a company
It claimed that Freeman’s policy of conducting background checks into criminal convictions and credit histories resulted in exclusion of more minorities than whites from the applicant pool. The EEOC has been pursuing this practice, which results in a “disparate impact” against minority groups, whose members are more likely to have had interactions with the criminal justice system and suffered credit problems during the recession. Studies have shown that bias has also led to harsher treatment, meaning more convictions instead of probation, for minority arrestees.
Given this backdrop, the EEOC’s goal is ambitious and laudable. The employer side of it, though, is reasonable. Depending on the job, an employer would want to exclude someone proven to have a violent past, or a history of theft. No employer should be required to hire a convicted embezzler as its bookkeeper, and may risk public safety, not to mention lawsuits, if it hires a convicted rapist to do service calls at customers’ homes.
The EEOC pursued in Maryland federal court a privately held company with offices around the country. The EEOC alleged that Freeman’s use of credit checks and criminal background checks resulted in the illegal exclusion of a disproportionate number of minority candidates. Federal district judge Titus threw out the case last week. There were two main problems with the EEOC’s case. The worst was that its statistical expert delivered a report with egregious errors. The judge seemed to question whether many were purposeful, but it also appeared that on the whole the statistical analysis was sloppy. The conclusion of the opinion included this summary: “The story of the present action has been that of a theory in search of facts to support it.”
The second problem seemed to be that this particular company did not use criminal convictions and credit histories as a blunt tool to weed out a portion of the population. Instead, the company looked at credit for certain classes of jobs involving the handling of money. It asked about convictions on the application form, but limited the use of conviction records to the last seven years, and, perhaps most importantly, did not complete any such background checks until after the applicant had a job offer.
The EEOC is likely to pursue similar cases, but will have to draw a clearer line between the background check policies and unreasonable exclusions of minority candidates from the applicant pool.
At a recent conference, the Equal Employment Opportunities Commission revealed some of its priorities for enforcement.
The EEOC is interested in attacking some of the barriers to getting a job. Since the EEOC has the job of enforcing federal civil rights laws, the barrier must have some impact on a particular protected category. Its efforts to challenge the use of credit reports in the hiring process, for example, have not been vigorously pursued. There is not enough research to support the theory that bad credit is more likely to be a female or African-American problem.
The use of credit reports to make hiring or promotional decisions in Maryland is limited by state law, however.
The link between criminal records and race is easier to establish. The EEOC has been trying to make clearer when the use of a criminal background is acceptable and when it unfairly weeds out potentially good applicants.
In both cases, the use of a background check needs to be linked to the job the person is applying for. Does the employee need to obtain a national security clearance? Is she going to have access to cash transactions? Is the employee going to go into customer’s homes? Is he guilty of violent crimes or drug violations?
Finally, the EEOC is continuing to focus on reasonable accommodations in the disability discrimination arena. Employers are required to engage in the interactive process to work out a way for a disabled employee to perform his job duties, even if a reasonable accommodation is required. Many employers simply make arbitrary rules without reasoning through the possibilities, or (impermissibly) use the excuse that an accommodation would not be fair to other employees.
The EEOC has been more active recently in taking cases for employees, and their settlements usually require ongoing monitoring and training of employees.
While racial harassment is limited only by the imagination of the bigoted minds that engage in it, the Equal Employment Opportunity Commission has put together a website of some of the worst cases it has been pursuing.
Racial slurs predominate, but physical abuse and threatening imagery, such as nooses, are commonplace in these workplaces too. Retaliatory terminations for complaints feature in many of the cases.
To be actionable, racial harassment must be pervasive or severe (though often it’s both), and be such that a court would conclude that it affected the terms and conditions of employment. One remark is unlikely to support a suit, unless it’s from a top manager, and is accompanied by a job effect, like demotion or firing. In the ordinary situation where lower line supervisors or coworkers are engaging in the harassment, other employees need to speak up, complaining to Human Resources, higher management, central corporate headquarters, and keeping a record of the complaints. The employer is liable for damage caused by the harassment if it has knowledge it’s going on, and fails to do anything about the atmosphere.
A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.
Yesterday the Fourth Circuit overturned, partially, an employer win at the trial court. The case came up in the context of a racial harassment case involving several African-American employees. In the Equal Employment Opportunity Commission v Xerxes Corporation, The EEOC sued on behalf of several named employees and a class of people affected by the hostile work environment. In reading about the company’s response, the frustration of dealing with such a workplace becomes clear. Various people called employees offensive names, but as the company’s discipline ratcheted up, the harassment became anonymous and more sinister. The black employees received anonymous messages, drawings of figures in nooses, references to the KKK, and general hostility. Although the local sheriff got involved, no one discovered who had delivered the messages. When anyone specific was called on the carpet, though, he or she dutifully apologized and took anti-harassment training. Some were suspended, and more were warned that any further incidents would lead to termination.
The Fourth Circuit held that once the company did get involved, its response was acceptable. While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit. Here, though, the company took too long to respond to the first complaints, and will have to go to trial.
While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision. Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.” Yet another employee’s testimony was discounted for being too general. The court faulted him for not having detail, context, examples, and time frames.
Yesterday, the U.S. Equal Employment Opportunity Commission sued Kaplan Higher Education Inc. for race discrimination, based on its practice of using credit reports to winnow out job applicants. The EEOC filed a class action suit in federal court in Ohio, alleging that the credit report use is more likely to single out African-American candidates.
As with job testing, employers need to be careful to tailor their screening requirements to the needs of the job. Courts are more likely to accept a bank’s argument that people with poor credit histories might pose a risk of embezzlement than the same argument from a schoolteacher.
With the enormous numbers of layoffs and foreclosures, the credit reports of many hardworking, talented people have taken a hit. Unemployment rates are higher among minority groups, leading to the disparate impact identified by the EEOC.
The Equal Employment Opportunity Commission has taken a harder look at the practice of checking the credit of potential employees. The EEOC held a hearing last month to get a variety of viewpoints on the issue. The human aspect cries out for reform. As high unemployment continues, many people have suffered dings or worse to their credit report. A repossessed car, late payments on credit card, a foreclosure, all make a credit report look bad. But if these were caused by unexpected unemployment, does the negative rating predict a bad employee? One might say that no, having been through these hardships someone may work hard to be the best, and avoid another layoff.
The employer’s point of view often hinges on the possibility that the credit report may flag someone with a history of money problems, which may indicate the embezzler-to-be. There are some problems with this logic. First of all, many employees are not in the position to deal with the employee’s money. Secondly, skilled embezzlers probably do not have money problems of the kind that show up on credit reports. Third, the use of credit reports weeds out African-Americans and Hispanics at a disproportionate rate, according to the EEOC. It may also hurt recently divorced women, young workers, and people who have had large medical bills.
Speakers at the hearing mentioned that the Fair Credit Reporting Act has safeguards, including requiring the applicants to authorize the check, and requiring the employer who used the report to reject the application to say so. Cold comfort to an applicant faced with a sign this or else ultimatum.
Using such a blunt tool does not belong in a meritocracy. A law pending in Congress, the Equal Employment for All Act, would add safeguards but still allow use of credit reports to screen applicants for a few categories of jobs, such as national security and financial institution supervisors. It is languishing in the House, although a hearing was held by the Subcommittee on Financial Institutions and Consumer Credit.
In another win for employees charging discrimination, the Supreme Court decided that firefighter applicants could sue for racial discrimination whenever the City of Chicago used an allegedly discriminatory test to fill openings. A class of African-American applicants claimed that the test, and its use, had a disparate impact on African-Americans. The City rejected all applicants scoring at 65% or lower, and decided that all applicants scoring at least 89% were eligible for the next stages of testing. Those who passed the test, but did not score at least an 89, were notified that it was unlikely that they would be called for any openings.
The African-American applicants contended that the test had a disparate impact on black candidates. That is, the test had the effect of eliminating proportionately more black than white candidates. At that point, it is up to the employer to show that the test is sufficiently related to the job requirements that its disparate impact is unfortunate but acceptable.
At the Supreme Court, Chicago admitted that the use of the 89% cutoff was unlawful. It tried to convince the Court, though, that there was only one discriminatory act, the 1996 test and its use to create three groups of people: rejected, qualified, and “well-qualified.” Since no one filed charges of discrimination within 300 days of the announcements of the three lists, it contended that all claims were too late to challenge the test and its scoring.
The Court held that not only the original adoption of the practice, but also the application of the practice, were incidents of discrimination. Therefore the class members were able to file charges of discrimination each time the City used the test.
This decision, authored by Justice Scalia, was unanimous. It is limited to the kinds of actions that do not require proof of discriminatory intent, that is, practices that have the effect, presumably unintended, of discriminating against one group.
Still, it has interesting language seeming to soften the widely criticized (and legislatively dismantled) Ledbetter decision. Quite often, the procedural issues relating to timing and proof structure have monumental consequences for employment discrimination victims, so this case, limited or not, is a positive step.