Applicant tracking and the EEOC: "You can SUE us for that?"

Did you realize that the Equal Employment Opportunity Commission can sue you just for (allegedly) lousy recordkeeping?

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"And you thought we weren't important!"

No discrimination, no harassment, no retaliation -- just (alleged) failure to keep adequate records.

Well, it's true. Back in 2010, the agency was investigating whether Crothall Services Group's use of criminal background checks and criminal history in making hiring decisions had a disparate impact on African-American, Hispanic, and male applicants. The EEOC subpoenaed records, and Crothall provided some, but they were "inadequate," according to the EEOC.

We don't know much more than that about the records. According to the EEOC's lawsuit, the agency contends that Crothall did not have sufficient records of the race, sex, and ethnicity of its applicants. Therefore, as I read the EEOC's allegations, it wasn't possible for the EEOC to determine whether Crothall's criminal background criteria had a disparate impact.

The EEOC sued Crothall for failure to maintain records as it was required to do under the Uniform Guidelines on Employee Selection Procedures. The UGESP says that a "user" of "selection procedures" (that is, an employer who applies any criteria in selecting individuals for hire or promotion)

should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group . . . in order to determine compliance with these guidelines."

If you're a federal contractor, you are probably painfully aware of this requirement, and already track the race, sex, and ethnicity of everyone in your applicant pools.

I talked to our firm's Affirmative Action Practice Group chair, Cara Crotty, because she has a lot of experience dealing with the UGESP as it is applied by the Office of Federal Contract Compliance Programs. Cara said that many employers who are not federal contractors do not realize that they may need to track applicants.

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Cara Crotty

Crothall argued in court that the EEOC didn't have the right to sue for an alleged recordkeeping violation, but the judge thought otherwise. She found, among other things, that Title VII requires employers to keep records, that the EEOC had the legal authority to issue the UGESP regulation that required recordkeeping, and that compliance with the EEOC's rule was mandatory and not "permissive."

I asked Cara, But doesn't this apply only to pre-employment testing, and maybe criminal and credit checks?

Not according to the OFCCP, Cara said. The OFCCP's position is that just about anything is a "selection procedure." Criteria. Job interviews. Drug tests. And pre-employment testing, and criminal and credit checks.

And since the federal agencies are "in sync" with each other more than ever, we agreed, it's likely that the EEOC would take a similar position.

So - if you're not a federal contractor, but you are covered by Title VII (15 or more employees), consider keeping track of the race, sex, and ethnic background of your applicants in some fashion.

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It's more than just annoying - it may get you sued.

In the Crothall case, the judge found that the EEOC had a valid legal claim (in other words, that the lawsuit could proceed), but she did not decide whether the company's records were, in fact, inadequate. A decision on that will come later.

Now, you may ask, what does the EEOC expect to get out of a recordkeeping lawsuit, where there is no evidence that any person has actually been harmed? The agency is asking the court to order Crothall to keep records that will allow the agency to determine whether Crothall's criminal background criteria have a discriminatory impact based on race, sex, or ethnicity.

"And such other relief as this court may deem just and proper."

Image Credits: File drawer and Error 404 from flickr, Creative Commons license. File drawer by Sterling Coffey; Error 404 message by PastaWS.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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