P. David Lopez, general counsel for the Equal Employment Opportunity Commission, was in Houston recently to speak before a conference about race discrimination and his agency's efforts to take on large-scale, nationwide investigations. ...
Q: What are the big, cutting-edge discrimination issues facing the EEOC?
A: We're going through difficult economic times right now. It's important to us to identify discriminatory hiring practices and policies that are excluding people unlawfully from the workplace.
I think the EEOC is in a unique position to do that. We're able to look at the patterns within a particular employer in a way a private individual isn't. You often don't know why you weren't hired. We can examine an employer's reasons and try to identify if there were any hiring screens.
We have a race discrimination case out of Chicago (that involved) a contracting company for custodial services. They had a predominantly Eastern European and Latino workforce and the (lack of) representation of African-Americans compared to the availability was statistically significant. They were using either word-of-mouth recruitment practices or relying on certain ethnic press.
We resolved it for $3 million and approximately 550 people benefited - the people who applied but weren't hired. The consent decree requires the company to actively recruit African-Americans. The whole goal is to make sure it doesn't happen again.
Another case we filed is a nationwide challenge to criminal arrest and conviction screens. We challenged that as having a disparate impact against African-Americans and Latinos. That is still pending in Baltimore.
I watched some of The Wire, and thank God the Obama Administration is cracking down on employers discriminating against criminals in Baltimore. These companies will make much higher profits once the Obama Administration forces them to overcome their bias against Baltimore convicts. Who wouldn't want to hire Baltimore's crooks? Didn't President Obama say Omar, the gay gunman, was his favorite character on The Wire? I don't want to be guilty of insider trading, but you should buy Baltimore real estate now, because, obviously, employment in Baltimore is going to boom once the Obama Administration stops all this irrational discrimination against Baltimore's armed robbers and murderers. Who wouldn't want to be an employer in Baltimore once the Obama Administration is in charge of your hiring policy?
Oh, now I notice that this case is "nationwide." The case is pending in Baltimore merely because the Obama Administration just wanted a jury of Wire characters. So, good times are here again ... nationwide!
Another one was filed in Ohio and we're looking at the use of credit reportsto screen out applicants. We allege it has a disparate impact against African-Americans.
Credit checks and criminal screens (were big) in the '70s and '80s and sort of disappeared but with the new economy, employers are adopting these types of employment screens. That is something that has generated a lot of interest at the EEOC.
Q: Why are more employers using credit scores and criminal convictions to weed out job applicants?
A: My speculation is that employers are in a position to generate much more interest in jobs and they're looking for shorthand ways to screen applicants. If we're able to establish disparate impact, then it's the employer's burden to demonstrate the hiring qualification is job-related.
(Employers) say it relates to honesty and performance. But that's where most of the litigation and discussion has centered - whether these screens can really be job-related and a business necessity.
Q: With so much information available online about virtually everyone, how much checking should an employer do before making a hiring decision?
A: I think they need to be very cautious doing online background checks.
There is the potential that if employers do that, certain classes of individuals will be scrutinized more heavily and you'll only look at the Facebook pages of certain applicants. There are potentially disparate treatment implications in doing that.