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More Guidance on Background Checks from EEOC and the FTC

Posted on Mon, Apr 14, 2014 @ 11:42 AM

by Jack B. HarrisonJack B. Harrison

The U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) jointly released two documents regarding the use of background checks in the workplace on March 10, 2014.  These two documents, one aimed at employers and one aimed at employees and job applicants, can be located on the EEOC’s website.  The documents are titled: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  While these documents offer very little new guidance, they do serve to remind employers of the “best practices” to be followed in the use of background checks in the employment context.

The documents do make it clear that “it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.”  However, they also caution employers that the use of background checks must comport with the federal Fair Credit Reporting Act (FCRA), if the background information is being obtained from a consumer reporting agency (CRA), as well as Title VII of the Civil Right Act of 1964.

Among the guidance offered employers in these documents is the following:

  • In all cases, make sure that you're treating everyone equally. It's illegal to check the background of applicants and employees when that decision is based on a person's race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
  • Except in rare circumstances, don't try to get an applicant's or employee's genetic information, which includes family medical history. Even if you have that information, don't use it to make an employment decision. (For more information about this law, see the EEOC's publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don't ask any medical questions before a conditional job offer has been made. If the person has already started the job, don't ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.
  • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.
  • Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
  • Once you've satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports - and any information gathered from them - securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can't be read or reconstructed. For more information, see "Disposing of Consumer Report Information? Rule Tells How" at

Both the EEOC and FTC have made it clear that enforcement of Title VII and the FCRA remains a top priority.  Thus, employers who make use of background checks should review their processes, policies, and procedures to ensure that they comply with these laws.  Additionally, prudent employers should also review their respective state’s laws regarding the use of background checks to ensure that they are in compliance with those laws as well.

Tags: Employment Law, Background Checks, FCRA, CRA

Supreme Court Defines—Who Is a Supervisor in Employment Matters

Posted on Tue, Aug 06, 2013 @ 01:59 PM

Jack B. Harrisonby Jack B. Harrison


On June 24, 2013, the United States Supreme Court issued an important decision regarding the reach of Title VII in an employment context.  In Vance, the Court was faced with the question of whether the “supervisor” liability rule established by the Court in earlier cases applied to harassment by employees who had the authority to direct and oversee an employee’s daily work or whether the rule was limited to only those “supervisors” having the power to “hire, fire, demote, promote, transfer, or discipline” the employee.  In a 5-4 decision, with Justice Alito writing the opinion of the Court, the Court held that an employee is a “supervisor” for purposes of Title VII only where the employee has the power to take tangible employment actions against the complaining employee (i.e. having the power to “hire, fire, demote, promote, transfer, or discipline”).


Maetta Vance, an African-American woman, worked for Ball State’s Banquet and Catering Department for over 15 years.  For the entire time that Ms. Vance was employed in that capacity, her direct supervisor was Bill Kimes, general manager of the Banquet and Catering Department.  In 2005, Ms. Vance complained about treatment she had received in the workplace at Ball State.  She alleged that she had been threatened by Saundra Davis, catering specialist, and that another employee, Connie McVicker, had directed racial epithets toward her.  Ball State investigated Ms. Vance’s allegations and, as a result, issued a written warning to Ms. McVicker.  Regarding Ms. Vance’s complaints against Ms. Davis, the investigation resulted in conflicting accounts of what had occurred between Ms. Vance and Ms. Davis.  As a result of the conflicting information received during the investigation, Ball State counseled both employees regarding their behavior.  Throughout 2006 and 2007, Ms. Vance continued to complain about her treatment by Ms. McVicker and Ms. Davis.

Ultimately, Ms. Vance filed a lawsuit against Ball State, Ms. Davis, Ms. McVicker, and Mr. Kimes.  In part, Ms. Vance claimed that the conduct of Ms. Davis created a hostile working environment for which Ball State should be held liable, because Ms. Davis was a supervisor. 

Ball State moved for summary judgment on all claims brought by Ms. Vance.  Based on precedents of both the Supreme Court and the Seventh Circuit Court of Appeals, the district court concluded that Ball State could not be held liable under Ms. Vance’s hostile work environment claims because Ms. Davis was not Ms. Vance's supervisor, in that Ms. Davis did not have the power to "hire, fire, demote, promote, transfer or discipline" Ms. Vance.  Thus, the district court held that the acts of Ms. Davis could not be imputed to Ball State, which would have given rise to supervisor liability under Title VII.

Ms. Vance appealed the district court's decision to the Seventh Circuit Court of Appeals.  The Court of Appeals affirmed the decision of the district court, concluding that because Ms. Davis did not have the power to "hire, fire, demote, promote, transfer or discipline" Ms. Vance, she did not have sufficient authority to be her “supervisor” for the purposes of liability under Title VII.


In its decision, the Supreme Court determined that the test for who is to be considered a “supervisor” for Title VII purposes is the bright-line standard adopted by the Seventh Circuit.  Under this test, an employer can be vicariously liable under Title VII for the actions of one of its employees "when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision causing a significant change in benefits.'"  With this decision, the Court attempted to provide clear guidance to employers and employees regarding who qualifies as a supervisor for purposes of Title VII.  In adopting this standard, the Court rejected the position the set forth by the EEOC in its Enforcement Guidance.  Under the EEOC’s Enforcement Guidance, a supervisor is described as someone who either has the authority to undertake or recommend tangible employment decisions affecting the employee or has the authority to direct the employee's daily work activities.  In its rejection of the EEOC position, the Court described this position as "a study in ambiguity".

By adopting a bright-line rule, the Court indicated that lower courts should be able to determine early on in Title VII litigation whether any basis exists for imposing vicarious supervisory liability on an employer, by determining whether or not the employee in question had the power to "hire, fire, demote, promote, transfer or discipline" the complaining employee.


The decision by the Court in Vance is good news for employers, in that it limits circumstances where vicarious liability may be imposed under Title VII and provides clear guidance as to what those circumstances are.  However, the decision does not impact the ongoing responsibilities imposed on employers to provide a workplace that is free from discrimination and discriminatory hostility.  Prudent employers should continue to provide regular periodic training to their workforce regarding discrimination and harassment, with additional training to their managers, including those managers where there may be a question as to whether they are "supervisors" for purposes of Title VII.  Employers should be certain that the training provided makes it clear that all managers have an obligation to take steps to prevent and to correct any discriminatory or harassing behavior.

Tags: Employment Law, Title VII