In 2010, the EEOC received a complaint that Crothall Services Group was using criminal background checks and criminal history to make hiring decisions that had a “disparate impact” on African-Americans, Hispanics, and male applicants – that is, even though the criteria was facially non-discriminatory, the criteria disproportionally affected certain protected groups. Before reaching whether Crothall’s selection criteria had such an impact, though, the EEOC came down on the company for another reason: the EEOC found that Crothall did not make or keep records regarding the impact its criminal history assessments had on applicants based on race, sex, or ethnic group. The EEOC brought suit against the employer for failure to maintain these records.
“But wait,” you say, “aren’t we prohibited from tracking this type of information.”
No, you’re not prohibited and you may be compelled to keep those records… Indeed, employers who are covered by Title VII (with 15 or more employees) are required to track race, sex, and ethnicity when they are using certain selection procedures to ensure the selection procedure does not have a disparate impact on any protected class.
A “selection procedure” is not limited to pre-employment testing. Rather, the Uniform Guidelines on Employee Selection Procedures (UGESP), developed by the EEOC, states that employers using “tests and other selection procedures which are used as a basis for any employment decision,” including hiring, retention, promotion, transfer, demotion, dismissal or referral, “should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group…in order to determine compliance with these guidelines” §2(B); §4(A). The EEOC provides examples of employment tests and other selection procedures, including the following:
For any tests or selection procedures used to make employment decisions, the employer should track race, sex, and ethnicity data to demonstrate whether the selection procedure is valid and non-discriminatory. Therefore, if a complaint is ever filed with the EEOC and the EEOC requests the information in its investigation, the employer will be prepared to comply. The employer has the burden of demonstrating the validity of a selection procedure. And while UGESP ostensibly provides guidance to employers on how to validate selection procedures, these materials are actually quite complicated. Employers should consider hiring an expert to assist in measuring the validity of any selection procedures. Even though they, in and of themselves, don’t carry the force of law (they’re only guidelines…), running afoul of EEOC dictates is surely to cause problems down the road.
In the meantime, and while you’re looking for that expert, the following are practical tips your company should consider when implementing any selection procedure:
Spending time now to ensure your company is in compliance can save you a headache down the road if ever one of your employees or an applicant files an EEOC complaint. If you have any questions on how to get started with tracking and maintaining your employment records, please give us a call. We’d like the opportunity to help.