EMPLOYMENT SCREENING » EEOC guidance may impact hiring practices of regulated industries

EEOC-guidance-HME-CDLLast year the Equal Employment Opportunity Commission (EEOC) released enforcement guidance that may have implications for certain regulated industries, especially those dealing with hazardous materials. The enforcement guidance addresses the screening of employees by means of their past criminal records. While the EEOC acknowledges that screening out applicants with criminal records does not, in and of itself, constitute a prohibited practice, if this screening leads to the disparate treatment of or disparate impact on a protected group – such as a religious or ethnic minority – it could constitute a violation of federal law.

Since the enactment of the USA PATRIOT Act in 2001, certain industries have been subject to heightened scrutiny because they deal with materials or infrastructure that are critical to national security. Chief among these industries is the transportation sector. All corporations or entities that are currently engaged in the transport of hazardous materials must have their drivers obtain a Hazardous Material Endorsement (HME) on their CDLs. This requires an extensive background check run by the Transportation Security Administration (TSA) and, consequently, has led to an increased interest in the past criminal histories of all employees within the industry.

At first glance, the EEOC guidance does not conflict with the requirements for HMEs. After all, the EEOC has explicitly stated that there can be no discriminatory behavior where a background check or hiring decision stems from federal law. So a company cannot violate federal employment law by refusing to hire a driver who cannot obtain an HME because of the TSA background check. However, many regulated companies utilize background checks for all of their employees, not just those that are required to be screened by federal law. It is here that a company can run into trouble.

If a company fails to treat all employees or prospective employees equally – such as disqualifying an African-American applicant with a criminal record that is identical to that of a Caucasian applicant that is hired – it may be violating federal law. In addition, policies that have a disparate impact on protected groups – that is, policies that are neutral on their face but end up harming groups that are more likely to have a criminal record – are also illegal. Perhaps the classic example of this is a company that refuses to hire anyone with a criminal record, no matter how insignificant. Since this policy may adversely impact a protected group, it will only be defensible if the company can show that the criminal conduct of the applicant or employee is directly linked to the inherent duties of a particular position.