The California Civil Rights Department (CRD) has announced a settlement agreement with a property management company and owner. This settlement resolved complaints that an Inglewood apartment complex refused to consider potential tenants with criminal histories. 

According to the agreement, the company and owner must update their screening policies to comply with state regulations. They must also provide personnel with training on fair housing regulations and pay $10,000 in monetary compensation. The CRD’s investigation began after receiving a complaint that the respondents had a blanket ban on renting to individuals with a criminal background. 

The Complaint

According to the complaint, this ban adversely affected black renters. Other than the criminal background, the individual who filed the complaint claimed to qualify as a renter. However, they alleged that the company chose not to rent to them due to a criminal background check. They further argued that the respondents failed to consider court documents. Reviewing this information would have indicated that he never received a conviction, proving the screening report inaccurate.

Under California’s Fair Employment and Housing Act (FEHA), housing providers cannot enforce a blanket ban on potential renters with criminal histories. These regulations require housing providers to base application decisions on a direct link between a given conviction and a specific non-discriminatory interest or purpose. The FEHA includes examples such as the safety of other residents, employees, or the property.

What to Consider

Housing providers should consider the nature or severity of the crime when determining its connection to interest or purpose. They should also note the time elapsed since the applicant’s criminal conduct. It is also crucial to only consider accurate and permissible criminal records. These do not include arrests that did not lead to a conviction, sealed, dismissed, or expunged convictions, and most adjudications or matters processed in the juvenile justice system.

The FEHA protects California residents from employment and housing discrimination, among other concerns. The CRD enforces the FEHA. According to the settlement, the CRD required the company and owner to:

• Continue to comply with federal and state housing regulations;
• Train all relevant staff regarding fair housing laws with a focus on how criminal history information can have a disparate impact on certain populations;
• Update their tenant screening policies to comply with state regulations;
• Display a CRD Fair Housing Fact Sheet in specified areas of the facilities and
• Pay $10,000 made payable to the complainant.

This settlement illustrates the importance of accurate and thorough criminal record checks. It also emphasizes how employers and landlords must comply with FEHA regulations. Working with a trustworthy background check provider can help companies and owners avoid violating these regulations.

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The California Civil Rights Council recently issued new regulations that modify California’s Fair Employment and Housing Act (FEHA). The FEHA regulates when and how employers may perform background checks on job applicants. With the new regulations already in effect, employers should review their hiring policies for immediate compliance.

What is FEHA?

The FEHA provides Californians protection for housing and employment. It protects job applicants and employees from discrimination based on race, national origin, ancestry, marital status, color, religion, or age if over 40. It also prevents bias based on sexual orientation, sex, disability, medical condition, or creed, and family and medical care leave denial. 

The Act also bans employers from conducting a criminal background check unless they have made a conditional offer of employment. After running a background check, an employer may decide against hiring an applicant based on the background screening results. However, they must conduct an individualized background check before taking adverse action.

During this assessment, the employer must consider the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence and
• The nature of the job held or sought.

An employer may still decide that an applicant’s criminal history disqualifies them from the job after the assessment. As such, the employer must give the applicant the required notice. The employer must also provide the applicant enough time to respond.

New Protections

The new regulations have added protections to the FEHA; employers must comply with the latest and previous rules. One added law prohibits employers from stating in job descriptions that they will not consider anyone with a criminal background. However, the new additions include a few exceptions to the regulation.

For example, jobs required by law to perform a criminal background check are exempt from these protections. Criminal justice agencies and others that require screening also benefit from the exemptions. Another regulation bans employers from trying to find an applicant’s criminal history via an internet search. It also prevents employers from considering an applicant’s criminal history even when the applicant voluntarily provides the information.

When performing the individualized assessment, applicants may provide evidence of rehabilitation or mitigating circumstances. Employers must consider this information when applicants present it. As such, employers cannot refuse any evidence or mitigating circumstances provided by the applicant. Employers must also give applicants a minimum of five days to respond to an adverse notice and an additional five days if the applicants request more time.

The new regulations will benefit many California residents and employers by expanding the labor pool. Employers should review their hiring policies to ensure they comply with FEHA regulations. One way to ensure compliance is by partnering with a trustworthy background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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The U.S. Equal Employment Opportunity Commission (EEOC) has released new data concerning the 2023 fiscal year. It shows that the agency has significantly increased its litigation during this time. According to the EEOC’s announcement, filings of employment discrimination lawsuits increased by more than 50% over fiscal year 2022.

This increase marks a return to a far higher litigation activity than performed in recent years. The suit filings in the fiscal year 2023 reportedly included 25 systemic lawsuits, nearly double those filed in the three preceding fiscal years. It also noted 32 non-systemic class suits seeking relief for multiple harmed parties; another 86 desired relief for individuals.

Word From EEOC Chair

According to EEOC Chair Charlotte A. Burrows, “[t]he EEOC was created as a result of an enduring national commitment to protecting civil rights, and the agency’s work helps fulfill the promise of justice and equality for America’s workers. The EEOC’s litigation program is an important tool to ensure compliance with the nation’s anti-discrimination laws and promote equal employment opportunity when the Commission is unable to obtain voluntary compliance.”

The Addressed Issues

The issues underlying these cases represent a broad range of the laws enforced by the EEOC. These “includ[e] barriers in recruitment and hiring, protecting vulnerable workers and persons from underserved communities, qualification standards and inflexible policies that discriminate against individuals with disabilities, the long-term effects of the COVID-19 pandemic, advancing equal pay, combatting unlawful harassment, and preserving access to the legal system.” More specifically, a report from the law firm Seyfarth found that most of these lawsuits concerned Title VII and the Americans with Disabilities Act. 

This sudden increase in lawsuits began when the new EEOC Commissioner Kalpana Kotagal took the lead; another factor included the increase in budget. In the first three months of the 2023 fiscal year, the agency only filed three lawsuits. After the new commissioner took charge, Seyfarth stated that the agency filed 13 in August. Following this increase was 71 in September out of the 143 new lawsuits filed in fiscal year 2023.

Employers should renew their focus on compliance due to this increased enforcement activity. However, compliance has proven particularly crucial in the employment screening process. Whether for applicants or current employees, employers must provide fair, non-discriminatory background checks. They can ensure success and compliance with related laws by working with a background screening process.

JDP makes background checks easy and reliable. Speak with a compliance expert today.

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The U.S. District Court for the Northern District of West Virginia Clarksburg recently ruled in favor of an employer. The employer claimed that an employee they terminated had lied about existing medical conditions on his application. Allegedly, the employee voluntarily disclosed his disabilities. As such, the court found that the Americans with Disabilities Act (ADA) did not cover the employee.

The Case

The plaintiff applied as a material handler for the West Virginia-based paper mill. The position required applicants to be able to operate heavy equipment, stand, push, and stoop for long periods, and lift up to 30 pounds. The paper mill asked applicants to identify any medical conditions in the employment application. 

When completing his application, he “elected not to divulge his confidential medical information before his hire.” Later, the plaintiff received a conditional offer of employment. The offer’s contingency required the results of a physical background check. It also relied on the truth, accuracy, and inclusion of any information that would materially impact the company’s decision to hire the plaintiff.

Following the offer, the plaintiff completed a Health History Questionnaire. It asked if he had ever experienced a strain, sprain, pain, stiffness, weakness, or other medical issues. He answered “never” for many of these questions. Furthermore, he claimed to find no questions concerning whether he had past or recent surgeries, hospitalizations, or conditions for which he received treatment.

The Complaint

According to the suit, the plaintiff worked for over a month before asking to meet with the company’s HR manager. At this meeting, the plaintiff disclosed his “disability.” He also mentioned having undergone three back surgeries over the previous two years and having a metal rod in his back.

Furthermore, the company claimed the plaintiff admitted to lying on the Health History Questionnaire. It also alleged that he failed to disclose this information during the physical. As a result, the defendant terminated the plaintiff’s employment for falsifying these records.

The plaintiff then sued the employer for disability discrimination under the ADA. He claimed the ADA prohibited these medical inquiries. The plaintiff also argued that the employer terminated him due to his disability. Though both parties filed motions for summary judgment, the court ruled in the employer’s favor.

The Findings

According to the court, the issue concerned whether the employee voluntarily disclosed his confidential medical information. According to the findings, the plaintiff voluntarily disclosed his medical history to the employer. As such, the ADA’s confidentiality requirements did not apply. This finding meant the ADA did not protect the plaintiff from termination due to sharing false information.

This ruling may benefit employers by providing further clarity regarding adverse employment-related actions due to dishonesty. However, employers should remain vigilant during the hiring process to maintain compliance. This requirement is especially crucial during the employment screening process, such as the criminal background check. Partnering with an experienced screening provider can help ensure compliance.

Easily verify your employment qualifications when you switch to JDP background checks. Contact a sales rep today.

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As of October 1, 2023, California has implemented regulations concerning applicants’ and employees’ criminal background checks. According to the changes, employers must perform a more comprehensive analysis when conducting background checks. 

Introduced Factors

The process also introduced more evaluation factors for employers to consider before making an adverse employment decision. Employers must now include the following in their evaluation:

• “The nature and gravity of the offense or conduct; consideration of this factor may include but is not limited to: 
  • The specific personal conduct of the applicant that resulted in the conviction; 
  • Whether the harm was to property or people; 
  • The degree of the harm (e.g., amount of loss in theft); 
  • The permanence of the harm; 
  • The context in which the offense occurred; 
  • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
  • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or 
  • The age of the applicant when the conduct occurred.
• The time that has passed since the offense or conduct and/or completion of the sentence; consideration of this factor may include but is not limited to:
  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or 
  • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration;
• The nature of the job held or sought. Consideration of this factor may include but is not limited to: 
  • The specific duties of the job; 
  • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or 
  • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.”

Further Changes

This law also changed the definition to “employer.” According to the changes, joint employers now qualify under California’s Fair Chance Act. These entities include businesses evaluating applicants’ criminal history for employers or as the employer’s agent. Other affected entities include staffing agencies and those that select, obtain, or provide workers from a pool or availability list. As such, California’s Fair Chance Act will apply to more businesses. 

These are not the only changes to California’s updated background check regulations. For example, employers must not advertise that they will not consider someone with a criminal background. This ban includes general advertisements, postings on job boards, or applications.

Furthermore, employers cannot consider an applicant’s criminal history before making a conditional job offer. This ban applies even when applicants voluntarily offer information. Violating the Act may end in severe penalties.

Such penalties include back pay, front pay, promotion, hiring or reinstatement, out-of-pocket expenses, and training. Failing to comply with the California Fair Chance Act and other employment laws can be very costly. The best way to comply with this and other employment laws is to partner with an experienced background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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The U.S. Equal Employment Opportunity Commission (EEOC) recently settled its case against a prominent online tutoring company. According to the settlement, the company will pay $365,000. The allegations revealed how the employer discriminated against tutoring applicants based on age. 

The EEOC stated that the tutoring organization relied on an automatic screening tool in its hiring process. However, the tool filtered out all applications from women 55 and older or men 60 and older. This filter system violated the Age Discrimination in Employment Act (ADEA) and failed to respect the applicants’ civil rights. As a result, the settlement established a healthy payout to thousands of impacted employment-seekers. 

Reactions to Case

Many employment experts took this case as a signal that the EEOC will become a strict watchdog for AI and automated screening tools. This first case establishes that employers maintain responsibility when their employees and algorithms discriminate. The EEOC also warned employers to be mindful of the discrimination and disparate hiring impact their AI and automated tools can create if misused. 

Such misuse can result in the violation of federal law, regardless of intent. In this case, some legal experts claimed the facts should hold humans as accountable as the AI. The EEOC alleged that people programmed the software to exclude older applicants. 

The Case

As such, the company intended to discard the applications, using a disparate treatment theory. This allegation revealed that the employer intentionally enacted discriminatory hiring practices despite having a computer carry out the actions. Thus, the automated application filter did not ultimately cause ageism and civil rights violations; it simply followed protocol.

Employers must remain mindful of AI and automated employment screening tools’ role in hiring processes. Per the EEOC’s guidance, employers should prepare to examine, identify, and eliminate disparate impacts created by using such technology. They should audit their tools’ selections to ensure they are not choosing candidates from protected groups less frequently. 

EEOC’s Guidance

The EEOC also stressed that New York City employers should follow this guidance to comply with local regulations. In addition, the Commission reminded all employers what constitutes protected characteristics. This list includes but is not limited to age, race, gender, and disability status.

Federal laws concerning discrimination in employment apply to multinational businesses as well. However, this applies only when hiring and employing workers in the United States. The EEOC assured concerned parties that employers may continue using AI and automated employment tools. However, the Commission urged interested employers to audit frequently to avoid non-compliance.

Similarly, screening employees through background checks requires considerable attention to compliance. The best way to comply with federal, state, and local consumer reporting laws and regulations is to partner with an experienced employment screening provider.

Stay updated on all the new rules of compliance with JDPs free news resources on FCRA, EEOC, and more. Contact a sales rep today for more information.

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The California Supreme Court recently announced a ruling concerning the California Fair Employment and Housing Act (FEHA) and how it affects businesses. This ruling specified how businesses performing employment-related activities for others must comply with FEHA. For example, FEHA will hold the company screening job applicants liable for discrimination, not the company that received the screened employees.

How It Started

This decision expands those accountable for complying with anti-discrimination laws in California. The Supreme Court referred to the state’s definition of employer changed to include an employer’s agent. As such, employees can sue third-party businesses for independently engaging in discriminatory behavior. 

This case began when employees filed a class action against third-party medical providers. According to the plaintiffs, the job screening involved inappropriate medical questions. At first, a California federal judge dismissed the case, explaining that the law did not consider third-party agents an employer.

However, the San Francisco-based Ninth Circuit Court of Appeals asked the California Supreme Court to review the case. The Ninth Circuit requested the Supreme Court to determine whether FEHA applies to third parties, determining whether employers’ agents should maintain direct liability for discrimination.

The Decision

The Supreme Court announced that FEHA protects workers throughout the hiring process; it does not matter if they outsource any step to a third party. As such, exempting businesses from liability would counter FEHA’s purpose. Justice Martin Jenkins wrote, “This interpretation extends FEHA liability to the entity that is in the best position to implement industry-wide policies that will avoid FEHA violations,” emphasizing the decision.

Furthermore, the state’s Attorney General’s office filed an amicus brief last year, which supports the plaintiffs today. Had lawmakers intended to exempt businesses from liability, they would have included the intention in the law. Such an exception could have happened any time over the last six decades, but because it did not, the law decisively holds third parties liable. As such, FEHA can hold businesses with at least five employees responsible for acts of discrimination when working on behalf of another employer.

This case reminds employers to choose their third-party agents carefully. They should also monitor the agents to ensure compliance with laws like FEHA. This decision makes employers and their third-party agents more vulnerable to lawsuits during the hiring process. As such, employers should consider working with an experienced and trustworthy background check company. The right partner will ensure compliance, reducing legal disputes while providing accurate and compliant reports.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Speak with a sales representative today.

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The U.S. Equal Employment Opportunity Commission (EEOC) recently received a new Commissioner. EEOC Chair Charlotte A. Burrows, Vice Chair Jocelyn Samuels, and fellow Commissioners Keith E. Sonderling and Andrea R. Lucas have welcomed Kalpana Kotagal to the Commission. 

Commissioner Kotagal has an extensive history of working in litigation on behalf of women and other marginalized groups. Such litigation includes tackling employment and civil rights-focused cases. She has also advocated for diversity, equity, inclusion, and accessibility issues. Furthermore, she worked as a partner at Cohen Milstein. 

The Commitment

This partnership allowed her to address cases involving the Equal Pay Act of 1963 (EPA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Family and Medical Leave Act (FMLA), and Affordable Care Act (ACA). She demonstrated her commitment to the issues above through these cases. As such, Commissioner Kotagal achieved membership in Cohen Milstein’s Civil Rights and Employment practice group while becoming chair of their Hiring and Diversity Committee.

Before becoming a part of Cohen Milstein, Kotagal acted as a law clerk for the Honorable Betty Binns Fletcher of the United States Court of Appeals for the Ninth Circuit. She graduated from Stanford University and the University of Pennsylvania School of Law. 

The U.S. Senate confirmed her nomination in July after President Joe Biden’s recommendation in April. Though intended as a bipartisan selection, the President typically nominates every member of the Commission. Kotagal’s indoctrination completes the Commission, as the EEOC must have five members.

The Press Release

EEOC Chair Burrows declared in a press release: “We are excited to welcome Kalpana Kotagal to the Commission. She has dedicated her career to advancing civil rights. Her creative approaches to ensuring equal opportunity, her legal expertise, and her commitment to workers will greatly benefit the Commission.”

In the same press statement, Commissioner Kotagal herself announced: “It’s an honor to start a new chapter as an EEOC Commissioner and an incredible opportunity to apply the experience from my previous work,” Kotagal said. “I look forward to working toward solutions for the issues facing today’s workforce alongside my colleagues on the Commission and in the agency.”

Those watching the EEOC can expect Kotagal’s name and input to appear in many of the Commission’s choices. As a commissioner of the EEOC, Kotagal will have a noticeable say in enforcing federal employment laws in the United States. One example includes employment screening regulated by many federal, state, and local laws.

As the EEOC welcomes its new commissioner, employers should consider reviewing their employment screening policies and ensure they comply with applicable regulations. One way to get started is by working with a trusted screening provider. The right partner can help with understanding EEOC guidelines for employment screening.

Background checks are made easy with JDP. Ask any questions you may have and learn more by contacting a sales rep today.

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The U.S. Equal Employment Opportunity Commission (EEOC) recently settled a lawsuit against a major online tutoring company. As a result, the company must pay $360,000 due to accusations of discriminating against older applicants. The suit revealed that the company programmed its recruiting software’s algorithm to eliminate applications from women aged 55 or older and men aged 60 or older.

The agency learned about this discrimination when an applicant claimed she received an immediate denial after applying with her actual birth date. This applicant applied with identical information and a different birth date the next day. According to the suit, she received an interview for the second application.

However, the company refuted all allegations during the settlement. It also disputed claims by the EEOC that its tutors are employees affected by the Age Discrimination in Employment Act of 1967 (ADEA). Instead, the company maintained its stance that all tutors are independent contractors.

The settlement agreement stipulates that the tutoring company must accomplish the following:

• Provide public notice about the settlement
• Create new anti-discrimination policies and complaint handling
• Provide appropriate training for managers
• Report to the EEOC, and
• Supply monetary relief to those impacted through the $365,000 payout.

This case further fueled cautions issued by the EEOC. For example, the agency warned that AI and algorithmic employment screening tools may perpetuate ageism, sexism, racism, and other biases in hiring. As proven in this suit, it can and does happen. The lawsuit alleged that these screening tools could cause employers to violate anti-discrimination rules. 

The EEOC has warned employers that AI tools could screen out applicants with disabilities based on inaccessibility. They advise companies using these tools to frequently self-evaluate to determine if their screening programs could result in discriminatory hiring practices. Furthermore, employers not involved in the tools’ development may find themselves liable for any discrimination from the tools’ use.

Any employer that utilizes AI or algorithmic screening tools should do their due diligence. For example, they should ask vendors to supply data on whether the tools screen out applicants from protected groups at higher rates. They should also check the accuracy of the information and whether the screening tool still perpetuates bias. The EEOC could hold the employer responsible for the results in either scenario.

Employers should stay abreast of the latest concerns in algorithm-based hiring tools to comply with EEOC’s recommendations. One way to ensure compliance is by partnering with a background check provider. The right partner can help businesses stay mindful of anti-discrimination rulings and avoid mistakes. While implementing AI or algorithmic screening programs may save time for HR, it is no substitute for a well-informed and helpful background screening partner.

Keep your business up to date on new laws and regulations with JDP’s free news resources. Contact a sales rep today.

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Signed into law on March 23, 2021, Senate Bill 1480 significantly changed Illinois’s hiring regulations. This bill amended the Illinois Human Rights Act, Illinois Equal Pay Act, and the Illinois Business Corporation Act and has gradually taken effect since this date. 

Employers should take notice of the following changes made by the bill: Amended restrictions when considering criminal records in the hiring process and increased demographic reporting requirements. The bill also requires employers to certify their Illinois Equal Pay Act compliance.

Illinois Human Rights Act Amendments 

The amendment to the Human Rights Act bans some employers from using conviction records in hiring decisions. It applies to anyone employing one or more employees within Illinois for 20 or more calendar weeks within a given year. However, it also offers the following exceptions:

1. If a “substantial relationship” exists between the criminal offense and the employment under consideration; or
2. If the granting or continuation of employment would pose an unreasonable risk to property or the safety or welfare of the public or particular individuals

Employers must consider six mitigating factors when reviewing a “substantial relationship” or potentially unreasonable risk. These include the following:

1. The length of time since the conviction;
2. The number of convictions appearing on the record;
3. The nature and severity of the conviction and its relationship to the safety and security of others;
4. The facts or circumstances surrounding the conviction;
5. The age of the employee at the time of the conviction; and
6. Evidence of rehabilitation efforts.

After considering these factors, employers may disqualify an employee based on a conviction record. However, they must proceed with an interactive process resembling the Fair Credit Reporting Act’s (FCRA) regulations. The employer must provide the individual with the following:

• A notice describing the specific conviction that disqualifies the individual from employment and the reason for the decision; 
• A copy of the individual’s conviction history report; and
• Information of the individual’s rights to respond within five days and dispute the decision; must explain their right to provide evidence challenging the accuracy of the conviction record and/or evidence of additional mitigating factors.

The employer must consider any evidence an applicant or employee presents before making the final decision.

Reporting of Demographic Information

The Illinois Business Corporation Act amendments include a mandate for employers who submit EEO-1 reports to the Equal Employment Opportunity Commission (EEOC). In addition to these reports, they must file a similar demographic information report with the state. Like the information in Section D of the EEO-1, it must include comprehensive details about employees’ gender, ethnicity, and race. Employers must file this with the Illinois Secretary of State with the other reports annually.

Certification of Compliance With the Illinois Equal Pay Act

The amendments to the Illinois Equal Pay Act addressed private employers of 100 or more employers. These employers must obtain an equal pay registration certificate from the Illinois Department of Labor by March 23, 2024. Employers must provide proof of provided wages to each employee and their gender, ethnicity, and race to obtain this certificate.

Employers should take steps to review their policies to comply with these requirements. The best way to ensure compliance with employment screening requirements is to partner with an experienced background check provider. The right partner can provide accurate screening and advice on local, state, and federal compliance issues.

Background checks are made easy with JDP. Ask any questions you may have and learn more by contacting a sales rep today.

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