Special Report on Background Checking—Burden of Proof

Workforce Management
Employers will soon be asked to provide empirical evidence for screening and hiring practices based on assumptions about workplace criminality—but they’ll be hard-pressed to find it. By Fay Hansen
February 2010, p. 27-33

EmploymentGroup’s December job postings included a “trial hire” for a small assembly job, paying $9 per hour, the equivalent of $17,550 a year. The Michigan staffing firm listed requirements for the position: a high school education or general equivalency diploma, small assembly experience and “no convictions.”
Virtually all of EmploymentGroup’s client companies have a blanket “no felons” policy.
“It’s about keeping the workplace safe, and about those lawsuits we all read about,” CEO Mark Lancaster says. In Michigan, a state that spends more on corrections than on higher education, smoking pot in a park or bouncing a $500 check can produce a felony conviction.
Like most employers, EmploymentGroup doesn’t have any empirical evidence that the “no convictions” policy helps keep the workplace safe. And screening vendors, who routinely claim that criminal checks reduce workplace violence, theft and fraud, don’t have any meaningful empirical evidence either. In addition, the actual probability of a negligent-hiring lawsuit—a perceived risk that often drives criminal screening practices—remains undocumented.
Employers spend billions on criminal checks and often base hiring decisions on the results without evidence of the return on the investment or the efficacy of the decisions. The absence of empirical evidence will soon become more than a question of effective screening and hiring practices.
Within the next 12 to 18 months, employers can expect to see the U.S. Equal Employment Opportunity Commission issue new guidelines that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices, according to Rod Fliegel, a partner at Littler Mendelson in San Francisco. The new guidelines are likely to upend hiring policies based on untested assumptions about criminality and workplace behaviors.

Full Story: http://www.workforce.com/archive/feature/27/03/17/index.php

Special Report on Background Checking—Burden of Proof

Workforce Management
February 2010

Employers will soon be asked to provide empirical evidence for screening and hiring practices based on assumptions about workplace criminality—but they’ll be hard-pressed to find it.
By Fay Hansen

EmploymentGroup’s December job postings included a “trial hire” for a small assembly job, paying $9 per hour, the equivalent of $17,550 a year. The Michigan staffing firm listed requirements for the position: a high school education or general equivalency diploma, small assembly experience and “no convictions.”

Virtually all of EmploymentGroup’s client companies have a blanket “no felons” policy.
“It’s about keeping the workplace safe, and about those lawsuits we all read about,” CEO Mark Lancaster says. In Michigan, a state that spends more on corrections than on higher education, smoking pot in a park or bouncing a $500 check can produce a felony conviction.
Like most employers, EmploymentGroup doesn’t have any empirical evidence that the “no convictions” policy helps keep the workplace safe. And screening vendors, who routinely claim that criminal checks reduce workplace violence, theft and fraud, don’t have any meaningful empirical evidence either. In addition, the actual probability of a negligent-hiring lawsuit—a perceived risk that often drives criminal screening practices—remains undocumented.
Employers spend billions on criminal checks and often base hiring decisions on the results without evidence of the return on the investment or the efficacy of the decisions. The absence of empirical evidence will soon become more than a question of effective screening and hiring practices.

Full Story: http://www.workforce.com/archive/feature/27/03/17/

Court makes it harder to prove age discrimination

Associated Press
Jun 18, 2:51 PM EDT


WASHINGTON (AP) -- The Supreme Court has made it harder to prove discrimination on the basis of age, ruling against an employee in his mid-50s who says he was demoted because of his age.
In a 5-4 decision Thursday written by Justice Clarence Thomas, the court said a worker has to prove that age was the key factor in an employment decision, even if there is some evidence that age played a role. In some other discrimination lawsuits, the burden of proof shifts to the employer once a worker shows there is some reason to believe a decision was made for improper reasons.
Jack Gross had been a vice president of FBL Financial Services of West Des Moines, Iowa. But in 2001, he lost the title of vice president in a reorganization and two years later, some of his responsibilities were given to a colleague.
Gross sued under the federal Age Discrimination in Employment Act and a jury agreed that his age was a motivating factor in his demotion. Gross was awarded $46,945 in lost compensation.
A federal appeals court in St. Louis overturned the verdict, however.
"We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action," Thomas said in the high court's opinion. "The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in the decision."

Full Story: http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_AGE_DISCRIMINATION?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT