A renewed Equal Employment Opportunity Commission focus on employment practices that have a disproportionate impact on members of a minority group is challenging longstanding human resources practices, says Paul Patten, a partner with Jackson Lewis LLP in Chicago.
Patten, a former trial attorney with the EEOC who now represents employers in lawsuits, says several recent EEOC cases highlight the increasing government scrutiny of employers that use blanket criminal background checks to screen applicants.
The EEOC recently sued Goodlettsville, Tenn.-based Dollar General and a U.S. unit of German automaker BMW AG, alleging the companies refused to hire applicants with criminal records, when the companies should have individually considered each applicant. The lawsuits said the companies’ practices disparately impact blacks, who have higher arrest and conviction rates than whites.
The use of criminal background checks isn’t illegal, but the EEOC has issued guidance that advises employers against implementing blanket screening procedures that prohibit all applicants with criminal records from being hired.
“The commandment to treat everyone equally now has a footnote or a caveat on it,” Patten said. “There are now major categories where you have to consider treating certain employees specially, and not treating everyone equally.”
2013 Daily News Human Resources Rules and Legal Ramifications seminar
Aug. 8, 2013, 3:30 p.m.
Memphis Brooks Museum of Art, 1934 Poplar Ave.
Patten will discuss rapidly evolving employment law trends in his keynote speech at a Human Resources Rules and Legal Ramifications seminar hosted by The Daily News on Thursday, Aug. 8. The seminar, which begins at 3:30 p.m. in the Memphis Brooks Museum of Art auditorium, also will feature a panel of industry experts, including Judy Bell, a senior executive in human resources and development with HRO Partners; Ray Stitle, chief people officer of Monogram Foods; and Kelly Gooch Carlson, general counsel and director of Young Villages.
Patten and the panelists will provide a comprehensive overview of far-reaching employment laws that are challenging both companies and employees. A wine and cheese reception will follow the seminar.
The renewed government focus on disparate impact law is proving frustrating to many employers as they await formal EEOC guidance in certain areas, Patten said.
“They are focused more on having employers evaluate each employee on an individualized basis,” he said. “But they have acknowledged the need to find comprehensive guidance for employers.”
Many areas of disparate impact law remain hazy and difficult for employers. That’s especially true of employees that request an extended leave of absence under the Americans with Disabilities Act. The 1990 law protects employees with disabilities from discrimination in the workplace. Employers also must make reasonable accommodations for disabled employees.
While employers are required to offer employees up to 12 weeks of leave under the Family and Medical Leave Act, the EEOC has recently had “a great deal of success” in challenging employers who refuse to grant leave beyond that to accommodate employees who need more time to get well after a prolonged illness or because of the care of an immediate family member, Patten explained.
“It’s quite frustrating for employers because there are few formal policies from the EEOC on this issue,” he said.