Employee Background Checks
Last month, the US Court of Appeals for the 9th Circuit held that an employer violated the federal Fair Credit Reporting Act (FCRA), which requires employers to provide certain disclosure documents to applicants before running any background checks, when it included information about state background-check laws in the same document as the FCRA disclosure.
The court found that the document provided failed to comply with FCRA’s requirement that the disclosure be “clear and conspicuous” and “in a document that consists solely of the disclosure.”
Employers should, therefore, make sure that the forms they are using are up to date. Note that if your forms haven’t been updated recently, they may not comply with the Economic Growth, Regulatory Relief, and Consumer Protection Act, passed in 2018, which requires inclusion of a notice regarding the new requirement for nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers.
If you’re not certain that the form your company uses is up to date, visit the Consumer Financial Protection Bureau website for the most recent model form, available in English and Spanish.
Discrimination Based on Religious Beliefs
Equal Employment Opportunity Commission (EEOC) guidelines require an employer to make an exception to its dress and grooming requirements, unless it would pose an undue hardship, once it learns that an employee desires an accommodation for his or her sincerely held religious beliefs.
The EEOC has been aggressively pursuing enforcement of these guidelines, and UPS recently agreed to pay $4.9 million to settle a religious-discrimination lawsuit filed by the EEOC in 2015.
UPS prohibits male employees who are in supervisory or customer-contact positions from wearing beards and from wearing their hair below collar length. A number of employees alleged that UPS failed to accommodate them when they informed UPS that their religious beliefs required them to have beards or long hair.
For example, a Muslim, who notified UPS that he wore a beard for religious reasons, was told that he had to shave his beard to get a driver helper position, and that “God would understand” him shaving to get a job.
Similarly, a Native American applicant was reportedly told “No haircut, no job,” although UPS knew that his hair was worn long for religious reasons.
In addition to paying damages to the current and former applicants and employees identified by the EEOC, UPS will be changing its religious accommodation process, and training managers, supervisors and HR staff on how to comply with the law. It will also be publicizing the availability of such accommodations.
In general, it is illegal to fire, discipline, harass or retaliate against employees for their religious dress and grooming practices. Employers are also prohibited from assigning employees to non-customer contact positions because of their religious dress and grooming practices.
EEOC guidelines specifically state that disgruntled customers are not considered undue hardship, even if those customers stop frequenting a business as a result of an employee’s religious dress or grooming practices.
Safety, security and health problems as well as a “more than de minimis” cost or burden on operations are considered undue hardships.
If, however, an employee’s requested accommodation would cause an undue hardship, the employer must explore alternative accommodations rather than simply rejecting the request for accommodation.
These rules do not apply to certain religious organizations or to employers with fewer than 15 employees, though there may be state laws that do apply to such employers, and it is likely that even small employers could be subject to similar sanctions.
Hair Style Discrimination
This month, the New York City Commission on Human Rights released new guidelines banning employers, housing providers, and providers of public accommodations from discriminating against people who “maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”
The guidelines specifically prohibit grooming policies that prohibit “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people, that require employees to “alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e., use chemicals or heat)” or that ban “hair that extends a certain number of inches from the scalp, thereby limiting Afros.”
An employer that has a legitimate health or safety concern must look for alternative ways to meet that concern before imposing a ban or restriction on certain hairstyles. There exist a number of options that may address such concerns.
For example, the employer may require the “use of hair ties, hair nets, head coverings, as well as alternative safety equipment that can accommodate various hair textures and hairstyles.”
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Please feel free to contact us if you have any questions about employee background checks, accommodation of religious beliefs, discrimination based on cultural identity, or any other employment issues.
Photo by Humphrey Muleba on Unsplash
