Anti-bias agency cracks down on the use of credit and criminal checks in job screenings

David G. Savage (Washington Bureau) | December 27, 2010

Reporting from Washington — The federal agency that enforces workplace anti-discrimination laws is warning employers they could be sued if they refuse to hire blacks or Latinos because of a bad credit history or a criminal record.

The Equal Employment Opportunity Commission last week sued Kaplan Higher Education Corp., accusing the company of using “a selection criterion for hiring and discharge — namely, credit history information — that has had a significant disparate impact on black job applicants.”

The lawsuit is part of a stepped-up but controversial effort to eliminate “arbitrary barriers” to employment for minorities by the EEOC, which is governed by five commissioners, three appointed by President Obama.

The Civil Rights Act of 1964 forbids racial discrimination by employers. And since the 1970s, courts have said this includes not just blatant bias, but unjustified hiring standards that have an “adverse” or “disparate” effect on blacks and other minorities. But this aspect of discrimination law has remained subject to considerable dispute.

EEOC lawyers say background checks can wrongly exclude a large percentage of minority applicants. “Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally,” said Debra M. Lawrence, an EEOC lawyer who filed the suit against Kaplan.

But Roger Clegg, a former Reagan administration lawyer, criticized these claims as “fundamentally misguided.”

“If the hiring criterion does not involve race and it was not racially motivated and it was applied evenhandedly, then it’s not racial discrimination,” said Clegg, president of the Center for Equal Opportunity in Virginia. “It’s not government’s business to second-guess a company’s hiring standards unless they are treating people differently because of their race.”

Read more at:,0,620979.story

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