EEOC Re-tools its Employment Screening Rule

            As the Equal Employment Opportunity Commission now advises employers that pre-hire screening on the basis of conviction records is a Title VII problem, keep in mind that the Commission makes this declaration under the heading of "adverse impact."  Remember that for any adverse impact case to go anywhere, the law must find actual impact, i.e.,  a short supply of the protected class that is in statistical terms affected by such screening.

            So if your organization has a healthy constituency of minorities (whose conviction records are higher than the general population), use of conviction records has had no impact on your workforce, and the EEOC take on the situation is only a take. The Seventh Circuit upheld the Board’s certification of Local 705: “….[T]he voter obviously attempted to rub out the ‘X’ and then colored it over with a highlighter similar in color to that of the ballot paper in order to minimize the appearance of the marking in the Local 710 box.  Alongside this attempt to obliterate…the voter left a distinct, heavily marked ‘X’ in the Local 705 box, made with multiple pen strokes….”  Ruan Transportation Corporation v National Labor Relations Board, __F3rd__, Nos. 11-1183 and 11-2058 (7th Cir. March 19, 2012).  

             Local 710 had argued that the highlighting in fact evidenced a preference for that union, not a “no.” This was not a baseless argument, and challenges the court’s use of the adverb “obviously” when describing the voter’s intentions.