Systemic Discrimination - The EEOC's new focus

The EEOC has shifted its focus to employers who practice systemic discrimination and is using a $23 million budget increase (and has asked for an additional $18 million) to get more aggressive in seeking cases to litigate that had formerly flown under the radar.

For example, a practice that many businesses rely on as part of their pre-employment screening is now under close scrutiny. Testing employees for alcohol use is now being litigated by the EEOC. In this particular lawsuit, the EEOC is challenging a steel company’s nationwide policy to subject its employees to alcohol tests during the employee’s 90 day probationary period.

Unlike testing for illegal drugs, the question raised by the EEOC is whether testing for alcohol use, violates the Americans with Disabilities Act (“ADA”) as alcohol testing is consider to be a medical examination. All employee medical examinations are subject to the ADA and must meet the specific conditions set out to allow medical examinations the ADA.

In another example, the EEOC filed suit against a nationwide provider of higher education alleging that the employer routinely discriminated by refusing to hire African-American applicants with poor credit histories. The EEOC asserted that credit checks of applicants in this case, were not job related or justified by business necessity, thus violating Title VII of the Civil Rights Act.

Many business routinely utilize these types of screening to select employees, particularly during this time of economic turmoil when a tremendous number of individuals looking for work, and employers are looking to ensure that they are not hiring people with substance abuse issues, etc. Given the push by the EEOC to stop systemic discrimination, it is the best interest of employers to review all of their HR and hiring practices to ensure that they minimize their legal exposure for discriminatory activity which they have inadvertently fallen into, particularly from a much more aggressive EEOC.

With the experience that our consultants have advising clients in the areas of background checking, drug & alcohol testing and general HR practices, G & J Consultants is well equipped to assist your business with this type of review.

Glenn Brown is the Co-Founder and Principal of the Kansas City based HR consultant firm, G & J Consultants, LLC. In addition to having directed the HR Department of a health care services company, Glenn is an attorney with 15 years experience assisting businesses of all sizes and industries in complying with employment and labor legal issues. G & J Consultants specializes in providing small and medium sized businesses with traditional HR services as well as compliance with employment laws and regulations.