The U.S. Equal Employment Opportunity Commission (“EEOC”) has published new guidance on two common areas of concern for employers: (1) employers’ responsibilities to accommodate religious dress and grooming in the workplace and (2) background checks on potential employees.
Religious Dress Guidance
On March 6, 2014, the EEOC released guidance concerning employers’ responsibilities under Title VII to “make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business.”
The guidance appears in two separate documents: (1) a “Fact Sheet” that provides an overview of religious accommodation requirements, and (2) a Question and Answer document entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” which provides advice for employers and employees, examples of permissible and impressible practices, and factual scenarios based on recent cases that the EEOC has addressed.
The new guidance supplements the EEOC’s dress and grooming guidelines in its 2008 Compliance Manual on Religious Discrimination. There isn’t much new territory covered, but the guidance still provides a helpful overview of the EEOC’s position in recent litigation and how the agency might respond in future cases in this area.
Background Check Guidance
On March 10, 2014, the EEOC and the Federal Trade Commission (“FTC”) issued two guides on the use of background checks in hiring and personnel decisions.
The first guide, entitled “Background Checks: What Employers Need to Know,” advises employers on their existing legal obligations under federal nondiscrimination laws and the Fair Credit Reporting Act (“FCRA”) when obtaining, using, and disposing of background information. The second guide, called “Background Checks: What Job Applicants and Employees Should Know,” walks applicants and employees through their rights under federal law when an employer performs a background check.
Generally speaking, these guides do not break new ground, but serve more as reminders to employers of their existing legal obligations when conducting background checks. For example, they suggest using particular care when making employment decisions based on background issues that might be more common among members of a particular protected class. They also remind us that employers are prohibited from requesting or obtaining an applicant’s “genetic information, which includes family medical history,” referring employers to the EEOC guidance on the Genetic Information Nondiscrimination Act (“GINA”).
One area of particularly useful information is the section on what to do with background check data. The guidance advises that after satisfying the employer’s federal and state recordkeeping obligation, background check data should be “burn[ed], pulverize[d], or shred[ed]” if in paper form or, if the records are in electronic format, they should be destroyed “so that [the data] can’t be read or reconstructed.”
Bottom Line
Although not binding on a court, the guidance on religious dress is a timely reminder for employers to review their religious accommodation policies and, as a best practice, conform those policies with the EEOC’s latest guidance.
On background checks, while the EEOC’s focus on employers’ policies has suffered some recent setbacks, this guidance indicates that the EEOC is moving full speed ahead in its scrutiny of background check procedures. Employers should read the guidance and make sure that their practices and policies are in tune with federal law. Employers also should remember that there may be additional state and local requirements that also may affect how background checks are run and how their results may be used.