As reported in the Hunton Employment & Labor Perspectives Blog:

In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners Terry Connor and Kevin White question whether the Equal Employment Opportunity Commission (“EEOC”) had the statutory authority to publish its April 2012 Guidance interpreting Title VII to impose disparate impact liability on employers who consider applicants’ criminal backgrounds as part of the hiring process.

The article first reviews the cases in which employers were found liable for failing to perform sufficient background checks after an employee caused harm to a customer or another employee. The article summarizes the history of the disparate impact theory of discrimination that has developed from the Supreme Court’s 1971 decision in Griggs v. Duke Power and argues that this EEOC initiative is an inappropriate extension of that theory.

Based on that history, Connor and White argue that Title VII does not stretch so far as the EEOC has taken it in this Guidance and that the Guidance does not include sufficient analysis to persuade the courts to give deference to its interpretation.

Thus far, the EEOC has not persuaded courts to adopt its position. In EEOC v. Peoplemark, the District Court for Western Michigan granted summary judgment to the employer after the EEOC failed to produce evidence of a statistically significant racial disparity in Peoplemark’s use of the conviction criterion to screen for risk. Another case, EEOC v. Freeman, is pending in the district court for the District of Maryland on the employer’s motion for summary judgment.

Not deterred, on June 11, 2013, the EEOC continued to pursue this theory by filing cases in the District of South Carolina against BMW Manufacturing, and in the Northern District of Illinois against retailer Dollar General. White and Connor have extensive experience representing employers in employment matters and significant expertise on this issue specifically, having followed the development of the Guidance and represented employers who have been subjected to similar challenges.

Download the full article.