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New Guidance on Background Checks

As of last week, another United States Circuit Court has called into question the Expert Witness testimony offered by the Equal Employment Opportunity Commission that led the Commission to issue Guidelines restricting reliance on Background Check Investigation information.  As some may recall, a few years ago, the Commission determined that because certain background checks may have a disparate impact on certain protected classes, an employer’s reliance on background check information such as “arrest” records should be curtailed if potential disparate impact liability is to be avoided. 


The Fourth Circuit found, however, that the EEOC’s expert testimony was “fatally flawed in multiple respects.”   As noted, the Fourth Circuit joins the Sixth Circuit Court of Appeals who reached a similar conclusion, casting doubt on the basis for cautioning employer’s about the need to take restrictive measures in order to avoid potential disparate impact liability.


SMART Tip: Despite the fact that two Circuit Courts have thrown doubt on the EEOC’s basis for concern and call for caution in relying on background check information, employer’s should not ignore the Guidelines.  At least not yet.  After all, remember that the EEOC’s Strategic Enforcement Plan lists Eliminating Barriers in Recruitment and Hiring as its number one priority. In this light, it seems fairly evident that the war on (and basis for cautionary use of) background checks will continue until the Supreme Court weighs in.


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