The Equal Employment Opportunity Commission has issued new "enforcement guidance" on "Employment Tests and Selection Procedures," link here.
The Guidance does not contain a lot of analysis. However, it is interesting for a couple of reasons:
- the EEOC considers background checks - such as criminal and credit checks - to be "tests," analyzed under disparate impact and treatment theories. This could have wide-ranging implications. It may be that applicants challenge such tests under an "adverse impact" theory. If adverse impact is shown, the employer will have to prove the tests are "job-related and consistent with business necessity." That means that background/credit/criminal checks for all employees could be challenged.
- the EEOC also identifies "performance appraisals" under the same rubric.
Otherwise, the Guidance briefly discusses anti-discrimination laws and how employment selection procedures may violate them. It also summarizes some EEOC litigation.
H/T to Storm.
Greg
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