Pamela Devata and Lynn Kappelman Published in Chain Store Age
“EEOC Initiative Focuses on Pre-Hire Selection and Testing Criteria”

Pamela Devata and Lynn Kappelman’s article, “EEOC Initiative Focuses on Pre-Hire Selection and Testing Criteria,” was published in the February 2010 issue of Chain Store Age. Their article discusses why companies need to be careful when using criminal background checks or obtaining applicants’ credit histories before making hiring decisions.

According to their article, the Equal Employment Opportunity Commission (EEOC) has determined that employers who decide not to hire applicants based on their criminal history or credit history may be adversely impacting black or Hispanic employees (or other minority populations) because these groups are arrested at a disproportionately higher rate and denied credit advantages as compared with the rest of the population. As part of its new E-RACE (Eradicating Racism and Colorism from Employment) Initiative, the EEOC is in the process of identifying “issues, criteria and barriers” that contribute to race and color discrimination in the workplace. The EEOC has been filing nationwide pattern and practice lawsuits against employers and challenging their hiring and screening procedures. The authors note that given the EEOC’s increased scrutiny of hiring policies, employers in the retail industry should make sure that hiring decisions based on background checks are “job-related for the position in question and consistent with business necessity.” Pam and Lynn note that several states have passed laws restricting employers from using credit information during the hiring process unless it directly bears upon the job at issue.

The authors point out that it is important that retailers review their pre-employment screening processes to ensure that they are seeking credit and criminal information from applicants in appropriate circumstances and using that information in a lawful manner. They also add that retailers should consult outside counsel to determine the applicable laws and regulations in the jurisdictions in which they operate.