Don Livingston Quoted on EEOC and Criminal Background Checks

In its special report “EEOC Aiming High, but Budget Level And Courts May Curb Commission’s Goals,” Bloomberg BNA discussed the outlook for the Equal Employment Opportunity Commission in 2014.

One of the topics covered in the report was the likelihood of the agency’s continued focus on hiring discrimination, in particular, employers’ use of background checks in hiring. Akin Gump partner Don Livingston was quoted for this article on the topic. Livingston, a former EEOC general counsel, noted that the EEOC’s guidance on the use of background checks in hiring decisions offers no answers as to what is or isn’t a “job-related” decision by an employer.  Instead, he said, the guidance describes the process employers should follow, adding that the EEOC’s field offices have “ducked the question” of what constitutes an allowable job-related decision based on a criminal background check.

Livingston did note that the EEOC’s guidance has been “a huge success” from the standpoint of making an impact, which he characterized as “enormous,” on employers’ practices in this regard.

In discussing the 7th Circuit’s decision in EEOC v. Mach Mining, whereby the court held, in the EEOC’s words, “that employers cannot challenge - and courts cannot review - the adequacy of…EEOC informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws,” Livingston said he expects the agency to seek to broaden its “scope of authority” following the decision. He also said that he finds the court’s decision “disturbing,” because, taken to its logical conclusion, the EEOC could engage in what he called “sham conciliation” or no conciliation at all without consequence.

Livingston spearheaded an August 2013 victory for Akin Gump client Freeman in an EEOC suit that alleged the client’s use of job applicants’ credit histories and criminal convictions resulted in a disparate impact on minority and male applicants. To read more about that engagement, please click here.