After conducting three webinars about the EEOC’s April 25th guidance document and trading innumerable emails and phone calls with clients, friends, and colleagues, I’m finally at a place where I feel comfortable releasing the Gospel According to Coffey on this topic – which is to say that I’ve mixed a lot of fact and some opinion into the presentation and I think it is a reasonable response to the new guidance.
(The rest of this post is about how the sausage was made, so you might just want to skip down and look at the PDF file.)
The challenge in putting this presentation together is that the EEOC guidance does not exist in a vacuum, though perhaps the EEOC would suggest that it does.
The guidance is more than a “suggestion” but is certainly less than a “rule” that employers must follow. There has been little coverage of that fact in most of the traditional, business, and social media coverage of the guidance’s publication. A publicity campaign by the EEOC and public interest groups like the American Civil Liberties Union and the National Employment Law Project trumpeting the new guidance as historic and game-changing overran the anemic responses by SHRM and the National Association of Professional Background Screeners. Thus, the media coverage tended to suggest that the new guidance was the new workplace law of the land.
Uh, not so much. Certainly, the EEOC listed a number of impractical “best practices” that they rather heavy handedly suggest that employers adopt or get ready to be sued. However much of the guidance follows the precedent set by other documents over the last four decades: Title VII of the Civil Rights Act of 1964 (including its 1991 amendments), the Supreme Court decisions in Griggs v. Duke Power Company and Green v. Missouri Pacific Railroad, and two previous EEOC guidance documents issued over 20 years ago. The EEOC has also been signaling their interest in this topic in their investigative and litigation choices, public hearings, and intiatives like E-RACE.
Reviewing the media coverage of the guidance outside of this context would lead those unfamiliar with this history to incorrectly believe that something significant and new has happened. It hasn’t.
So, I tried to quickly cover almost forty years of history in this single presentation, including the development of the “disparate impact” theory in Griggs and Green. At the same time, I didn’t want to miss the rest of the regulatory landscape affecting employers use of criminal records, including the “ban the box” movement and a host of other state-law considerations.
Then, I turned to try and figure out how reasonable employers who already had solid policies and good management training might address the EEOC’s suggestions of how one might avoid a discrimination suit. One of those ideas involved coopting a process already required in many cases by the Fair Credit Reporting Act, so I found myself giving a very brief primer on employers’ responsibilities under the FCRA.
The feedback from the webinar has been very positive. However, some who took our post-webinar survey suggested that some of background information was too basic for experienced HR pros while others thanked me for the in-depth review. Judge for yourself:
This file also includes all 55 pages of the guidance document. If you would rather download this PDF, click on the “View it on Slideshare” button and choose the download option.
As with everything I do, nothing is ever “good enough,” so I’ll continue to tinker with the presentation as I get feedback from the HR community. I am also working to revise the Background Checks Under Fire presentation to incorporate the EEOC’s guidance. I’m making that presentation to the Dallas-Fort Worth Staffing Management Association next week, in case you just can’t get enough of this stuff.