EEOC settles lawsuit over record keeping of criminal background checks

“Crothall Services Group, Inc. is a nationwide provider of janitorial and facilities management services based in Wayne, Pa. Recently they had to make significant changes to their record keeping practices relating to their use of criminal background checks. This was done in order to settle a record-keeping suit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

Apparently Crothall was using criminal history assessments to make hiring decisions. That in itself is not an issue, but it was being done without making and keeping required records that would disclose the impact the assessments have on persons identifiable by race, sex, or ethnic group.

Because they failed to make and keep such records, they were in violation of Title VII of the Civil Rights Act of 1964. Title VII protects individuals from discrimination in employment because of race, sex, national origin, color, or religion, including certain employment practices that have a disparate impact on employees in protected groups. Title VII, together with record-keeping regulations found in the Uniform Guidelines on Employee Selection Procedures (UGESP), require employers to maintain records disclosing the impact their selection procedures have upon employment opportunities of persons identifiable by race, sex, or ethnic group.

EEOC filed suit in U.S. District Court for the Eastern District of Pennsylvania (Equal Employment Opportunity Commission v. Crothall Services Group, Inc., Civil Action No. 2:15-cv-03812-AB). U.S. District Court Judge Anita B. Brody held that the UGESP record-keeping regulation is mandatory on June 28, 2016. Judge Brody entered the consent decree on December 16, 2016, settling the suit. 

If Crothall Services Group intends to obtain or assess any person's criminal history information, the company must first make and keep records identifying the person's gender, race, and ethnicity during the 4 year decree. Once Crothall has reviewed any person's criminal history information or conducted any criminal history assessment, it also has to keep records of the criminal history information, the results of any criminal history assessment, and any employment decision made based on any criminal history assessment. The decree further requires record keeping relating to complaints about Crothall's use of criminal history information and assessments, including complaints of discrimination, and regular reporting to EEOC throughout the decree's duration.

"Employers should take note that if they choose to rely on a selection procedure such as criminal background screening, they are required to create and maintain records that allow an assessment of whether the selection procedure has a disparate impact based on race, national origin or sex," said EEOC General Counsel David Lopez. "This case clarifies that the record-keeping rule is not permissive, but rather is mandatory and enforceable in a court of law." "EEOC is pleased with the terms of this decree, which requires compliance with mandatory UGESP record-keeping regulations and monitoring of the employer's use of criminal history information as a selection criterion." stated Regional Attorney Debra Lawrence of EEOC's Philadelphia District Office.

EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. The case is Equal Employment Opportunity Commission v. Crothall Services Group, Inc., Civil Action No. 2:15-cv-03812-AB. The press release entitled “Consent Decree Entered In EEOC Record-Keeping Suit against Crothall Services Group” is at www.eeoc.gov/eeoc/newsroom/release/12-16-16a.cfm.