Survive EEOC crackdown on background checks, leave policies ...

The EEOC received a record 99,947 charges in the 2011 fiscal year?the most the agency has received in its 46-year history. That?s an increase of more than 30% from just five years ago.

Given this sharp increase in charge activity, now is a good time to review your personnel policies and practices to make sure you?re taking appropriate steps to help prevent potential dis?crimination claims.

In reviewing their policies and practices, employers may want to consider the following two EEOC enforcement trends: increased scrutiny of background checks and inflexible leave policies.

Background on background checks

Several high-profile acts of employee violence and other criminal activity over the past several years have caused many employers to increase their use of employee background checks.

Background checks are useful for several reasons. They can help weed out potentially violent job applicants and identify employees who might engage in other bad acts. They can also provide some measure of defense against negligent-hiring claims.

However, employers need to be cautious to ensure that their use of background checks does not inadvertently lead to discrimination claims.

The EEOC has long taken the position that policies and practices that exclude applicants on the basis of credit history or criminal background can have a disparate impact on minorities (thus violating Title VII of the Civil Rights Act) unless the policy or practice is job-related and consistent with business necessity.

The EEOC has recently increased its scrutiny of employers that use background checks as part of its Eradicating Racism and Colorism from Employment (E-RACE) initiative.

Background-check best practices

In light of this increased EEOC scrutiny, you should carefully review your background-check policies and practices.

In particular, make sure that when an applicant is excluded from employment as a result of the background check, you can articulate why the ex??clusion is job-related and consistent with business necessity.

In addition, ensure that your background-check practices comply with the Fair Credit Reporting Act and applicable state consumer reporting laws, which govern checks. Those laws impose several notice requirements on employers that conduct background checks.

Beware inflexible leave rules

Another focus of increased EEOC scrutiny is inflexible leave policies. The EEOC has recently brought several disability discrimination lawsuits against companies that have terminated employees who were unable to return to work at the end of a maximum leave period. That can be very expensive!

Two years ago, the EEOC settled a case with Sears for $6.2 million. In that case, the EEOC claimed Sears violated the ADA by having a policy of terminating employees who were out on workers? compensation leave for more than one year. Sears refused to consider accommodations that involved returning to work in a different capacity or offering brief extensions of leave. ?

Last year, the EEOC also settled a similar disability discrimination lawsuit against SuperValu Inc. for $3.2 million.

Those settlements are a stark re??minder that an inflexible leave policy (even a generous policy that provides 12 months of leave) can lead to violations of the ADA if employers do not consider available reasonable accommodations that would allow em??ployees to return to work. ?

Legal leave policies

In light of this enforcement trend, make sure you don?t seek to enforce black-and-white policies on the maximum length of medical leaves. Rather, you should engage disabled employees in an interactive process to find reasonable accommodations.

Make case-by-case determinations about whether an extension of a leave of absence is a reasonable accommodation. Similarly, consider other available reasonable accommodations that may allow disabled employees to return to work.

Online resources

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Author: Abigail Crouse, a principal at the law firm of Gray Plant Mooty in Minneapolis.

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