by Garrick Chan, Rod Fliegel - JD Supra

Last month, the new chair of the EEOC, Charlotte A. Burrows, was the keynote speaker at a conference regarding new research on criminal recidivism.1 The EEOC has been mostly quiet on the topic of criminal background checks and Title VII since the U.S. Court of Appeals for the Fifth Circuit upheld an order enjoining the EEOC from enforcing its Enforcement Guidance against the State of Texas.2 Chair Burrows’ comments reveal the EEOC remains keenly interested in this subject. But this is just one of the reasons why employers, particularly those operating in multiple jurisdictions with a high concentration of entry-level jobs, must continue to be thoughtful about criminal record screening policies. The other reasons include the risk of disparate impact class actions by the plaintiff’s bar, regulatory actions by local fair employment agencies, and increased claims activity by individual plaintiffs, particularly in California and New York. And these concerns fall against the backdrop of widespread class actions under the federal Fair Credit Reporting Act (FCRA).3