EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII/Background Checks/ Applicant Filing EEO Lawsuit
May 11, 2015
This is in response to your March 31, 2015, letter to the U.S. Equal Employment Opportunity Commission (EEOC or Commission) Chair, Jenny Yang, in which you describe losing employment opportunities after background checks disclosed that you had sued a prior employer under the equal employment opportunity (EEO) laws. Specifically, you maintain that at least one employer eliminated you from consideration for employment despite your qualifications after learning through a background check that federal court records showed your EEO lawsuit against a prior employer. The background check apparently included a review of the online Public Access to Court Electronic Records (PACER) system, which makes information about civil litigation including EEO cases widely available online. In your letter, you also call attention to barriers faced by job applicants who attempt to discover which employers have accessed their public civil court records, and to the difficulty of sealing court records or removing personal identifying information from them.
The employment discrimination laws EEOC enforces prohibit employers from retaliating against applicants or employees because they opposed discrimination or participated in a discrimination proceeding.(1) A retaliation claim has three elements:(1)protected activity, either“participation” in EEO activity or “opposition” to employment discrimination; (2) adverse action; and (3) a causal connection between the two. Any action that may deter a reasonable person from engaging in protected activity qualifies as an “adverse action” for purposes of stating a retaliation claim. Burlington N. & Santa Fe Rwy v. White, 548 U.S. 53 (2006). These protections extend to individuals who are retaliated against by a different employer than the one against whom they engaged in protected activity. For example, in one case, an employer’s frequent reference to plaintiff’s sex discrimination action against a prior employer warranted the inference that defendant’s refusal to hire was retaliatory. Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991). In that case, the employer learned of the previous lawsuit directly from the former employer while obtaining an employment reference. However, regardless of the manner by which an employer obtains information about protected activity, the employer may not take an adverse action against an employee or applicant because she engaged in those actions.
While we cannot comment on your particular situation, we can report that retaliation has been the most commonly alleged form of discrimination in charges filed with the agency in each of the past several years. In Fiscal Year 2014, 42% (37,955) of the charges resolved by the EEOC alleged retaliation-based discrimination. In part for this reason, the EEOC’s 2013-16 Strategic Enforcement Plan includes “preserving access to the justice system” as one of its six national priorities. The Commission targets policies or practices, including retaliatory actions, which discourage individuals from exercising their rights under employment discriminations statutes. See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016, at http://www.eeoc.gov/eeoc/plan/sep.cfm.
The EEOC also recognizes that more and more employers are conducting background checks, and that there is a plethora of information – accurate and inaccurate – now available on the Internet that can become part of an applicant’s background check and be used in the employment decision. For this reason, another national EEOC priority is “eliminating barriers in recruitment and hiring.” Under this priority, the EEOC targets, among other practices, “the use of screening tools (e.g., pre-employment tests, background checks, date-of-birth inquiries)” that adversely impact particular protected groups, including older workers and women. The EEOC and the Federal Trade Commission also issued joint publications for employers and applicants and employees regarding the use of background checks. See http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm, and http://www.eeoc.gov/eeoc/publications/background_checks_employees.cfm. You may contact the Federal Trade Commission regarding the concerns about the Fair Credit Report Act, at www.ftc.gov, 1-877-FTC-HELP (1-877-382-4357) or 1-866-653-4261 (TTY).
If you believe that a prospective employer retaliated against you because you filed an EEO lawsuit, you may file a charge of discrimination with the EEOC. Charges of discrimination filed with the EEOC are confidential, as is any ensuing investigation or voluntary resolution through conciliation. Filing a charge of discrimination is a protected activity under the anti-retaliation provisions of the laws that the EEOC enforces. The charge becomes public only if and when an action is filed in court. For information about filing a charge of discrimination at the EEOC’s Philadelphia District Office, please see http://www.eeoc.gov/field/philadelphia/charge.cfm.
Thank you for bringing these issues to our attention. We hope this information is helpful to you. Please note that this letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.
s/Carol R. Miaskoff_______
Assistant Legal Counsel
1 The Commission enforces Title VII of the Civil Rights Act of 1964, as amended, (Title VII), the Equal Pay Act of 1963 (EPA), the Age Discrimination in Employment Act of 1967 (ADEA), Title I of the Americans with Disabilities Act of 1990 (ADA), and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).
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