Recent EEOC Rulings Expand Title VII Protections, Increase Scrutiny on Employers - Articles

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Posted by: Christy Gibson on Jul 6, 2012

By: Joshua J. Sudbury*

Not to be outdone by the recent flurry of activity by the NLRB, the Equal Employment Opportunity Commission (EEOC) made two bold statements of its own relating to the protection of transgendered individuals and employers’ use of criminal background checks.  While not as publicized as the actions of its sister federal agency, these rulings are sure to have an impact in the world of employment law in the years to come. 

Transgender Individuals

On April 20, 2012, the EEOC stated, under Title VII, employers may not discriminate against transgender individuals because of an individual’s transgender status.  The ruling came in response to a charge of discrimination filed by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives (“the Bureau”), arising out of Macy’s failed bid for a position with the Bureau. 

According to Macy, a police detective, she initially interviewed for the position by telephone while still presenting as a male.  Macy alleged she was promised a position with the Bureau after the telephone interview, provided her background check was clean.  However, after Macy revealed to the Bureau that she was in the process of transitioning from male to female, the Bureau allegedly notified Macy the position she sought had been filled.  Based on the Bureau’s alleged about-face, Macy filed a charge of discrimination, alleging the Bureau had discriminated against her because of her sex and engaged in “sex stereotyping.”  When the Bureau rejected her claim, Macy appealed to the EEOC.

On appeal, the EEOC sided with Macy.  Specifically, the EEOC stated “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  The EEOC noted that courts have long read Title VII to prohibit employers from discriminating against an individual because he or she does not conform to cultural and social aspects associated with his or her biological sex.  As a result, the EEOC found that discriminating against a person because he or she is transgender is discriminating against that person because of his or her sex, an act expressly prohibited by Title VII.  The EEOC went on to explain that Macy could establish a case of discrimination by proving she was denied the position either because her employer believed a man should appear as a man, i.e., wear the clothing typically worn by males, or because her employer did not want a woman in the position.  In light of its ruling, the EEOC noted both scenarios would amount to unlawful sex discrimination under Title VII.

Criminal Background Checks

Five days later, on April 25, 2012, the EEOC issued new enforcement guidance regarding employer criminal background check policies.  While not a drastic change from the EEOC’s original guidance issued in 1987, the new guidance makes clear the EEOC presumption that blanket policies excluding applicants on the basis of prior convictions have a disparately negative impact on minority job applicants, as studies show African-Americans and Hispanics are arrested at rates of two-to-three times higher than the non-minority population.

To overcome this presumption, an employer must usually be able to show its use of a criminal background check is tied to a valid business necessity.  The new enforcement guidance points to three factors an employer must consider to demonstrate business necessity:

  1. The nature and gravity of the offense or offenses;
  2. How much time has passed since the conviction and/or completion of the sentence; and
  3. The nature of the job held or sought.

In addition, the new guidance points out that while an employer can assert compliance with Federal law in conflict with Title VII as a valid defense to a discrimination claim, compliance with conflicting state law will not be considered a valid defense if the law requires or permits an act which would be an unlawful employment practice under Title VII.

The EEOC’s new guidance also pushes for employers to engage in individualized assessments of applicants’ or employees’ criminal histories when making employment decisions.  According to the EEOC, this practice includes informing an individual that he may be excluded because of past criminal conduct, providing the individual with an opportunity to demonstrate he should not be excluded on the basis of his prior conviction, and considering whether the individual’s additional information shows the policy, as applied, is neither job-related nor consistent with business necessity.  Although the EEOC states that individualized assessments are not required in every case, the EEOC nevertheless emphasizes they can “help employers avoid Title VII liability.”

Lastly, the new guidance addresses the differences between an employer’s use of arrest and conviction records in employment decisions, stating the fact that a current or prospective employee has been arrested does not establish that criminal conduct has occurred.  As a result, the new guidance discourages employers from taking adverse employment actions based on an individual’s arrest record alone.  However, a record of an arrest may trigger an inquiry by the employer as to whether the conduct underlying the arrest renders the current or prospective employee unfit for the position in question, thereby justifying an adverse employment action.  In contrast, a record of a conviction generally serves as sufficient evidence that the person has engaged in the alleged conduct, although the EEOC encourages employers to refrain from inquiring into criminal convictions until later in the job selection process, and to limit any questions to only those concerning convictions that are related to the position in question and consistent with business necessity.

As a result of the EEOC’s new guidance, employers would be well served to eliminate any policies or practices currently in place which eliminate employees or applicants based merely on the existence of a criminal record.  Employers should develop narrowly-tailored policies and procedures for screening applicants and employees for criminal conduct and reduce these to writing.  In addition, employers should ensure all front line supervisors, managers and hiring officials are properly trained regarding how to avoid discrimination in employment decisions including avoiding discriminatory inquiries which are neither job related nor consistent with the necessities of the position sought.  Finally, employers should ensure any information obtained regarding an individual’s criminal background is kept confidential.

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*Joshua J. Sudbury is an associate in the Nashville office of Ford & Harrison, LLP.  Mr. Sudbury has represented clients in various industries before state and federal courts and administrative agencies against employment claims brought pursuant to Title VII, ADA, ADEA and FLSA. He also regularly counsels employers regarding labor and employment issues.  He can be reached at jsudbury@fordharrison.com or at (615) 574-6700.