EEOC Record Keeping Comes to Background Checks

May 23rd, 2017 by

For many years now, the EEOC has required specific record keeping when a company uses some sort of applicant testing as a screening tool for employment.  Testing broadly refers to any part of the recruiting process where a decision can be made on an applicant as to them advancing in the process.  According to the Uniform Guidelines on Employee Selection Procedures (UGESP), companies have to collect applicant data when they make adverse decisions of employment based upon the performance of protecting status people through the use of “interviews, review of experience or education from application forms, work samples, physical requirements, and evaluations of performance” (UGESP).

While there is a partial reprieve for employers with less than 100 employees, these guidelines require employers to keep race, sex and ethnicity data on applicants, hires promotions and terminations (Section 15, UGESP).  This requirement is nothing new for those employers covered by federal affirmative action guidelines.  For all other employers, this news may be a bit unsettling.  As it was for Crothall Services Group.

In 2015, the EEOC filed a lawsuit against Crothall Services Group, Inc., ( 2:15-cv-03812, in the U.S. District Court for the Eastern District of Pennsylvania) for not keeping the above prescribed records as they related to their use of background screening.  The case was recently settled through the signing of a consent letter where Crothall, in regards to conducting background checks, agrees to “keep records identifying the person’s gender, race, and ethnicity. Once Crothall has reviewed any person’s criminal history information or conducted any criminal history assessment, it also has to keep records of the criminal history information, the results of any criminal history assessment, and any employment decision made based on any criminal history assessment. The decree further requires record keeping relating to complaints about Crothall’s use of criminal history information and assessments, including complaints of discrimination, and regular reporting to EEOC throughout the decree’s duration” (EEOC).

So this leaves employers with an interesting choice.  If you adhere to the letter of the guidelines and collect race/gender information on all applicants, then that means the government will have the data it needs to potentially extract backpay and other monies from your company for applicants adversely impacted by your selection procedures.  If you collect that data, you are strongly advised to document why each applicant didn’t progress through the various levels of your selection process.  You would also would want a clear process on how long you maintain such records (one-year requirement from EEOC for non-federal government contractors).  If on the other hand, you chose to not collect data on applicants, then you could potentially find yourself in a situation like Crothall and be forced by the EEOC to adopt such practices going forward.  It’s also yet to be seen how an NC court would rule in such a case.

Regardless of the direction you go, we strongly recommend reviewing your applicant recordkeeping procedures and all “tests” you use during the selection process.

We can also help you with your background checking needs.  For more information please contact Kevin W. von der Lippe at (919) 878-9222, (336) 668-7746 or by e-mail; kevin.vonderlippe@capital.org.

Kevin W. von der Lippe is a licensed private investigator at CAI and for 19 years has managed our detective agency and background checking business.  He is security minded and proficient with the federal Fair Credit Reporting Act (FCRA) and the enforcement of Title VII of the Civil Rights Act of 1964, as administered by the EEOC as it relates to background checks. Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

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