SESCO’s Weekly Update

EEOC RESCINDS GUIDANCE ON EMPLOYERS’ USE OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS

The U.S Equal Employment Opportunity Commission (EEOC) has rescinded its 2012 enforcement guidance addressing employers’ consideration of arrest and conviction records in employment decisions. While the rescission signals a change in the EEOC’s enforcement approach, employers remain subject to federal, state, and local antidiscrimination laws governing the use of criminal history information in employment decisions.

Notably, rescission of the guidance does not amend Title VII or eliminate potential liability arising from employers’ consideration of arrest and conviction records in employment decisions. As Chair Lucas noted “rescinding this guidance does not give employers license to engage in unlawful discrimination—Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination . . . [and] [t]he EEOC will continue to vigorously enforce these protections in accordance with the law.”

Title VII’s prohibition against disparate treatment remains unchanged. Employers that apply criminal history screening policies more harshly to applicants or employees based on race, national origin, or another protected characteristic may continue to face discrimination claims.

Employers must continue to comply with applicable state and local laws governing criminal history inquiries and employment decisions. Many jurisdictions impose requirements that are independent of the EEOC’s guidance, including restrictions on the timing of criminal history inquiries, individualized assessment requirements, limitations on the consideration of certain criminal records, and notice obligations before an adverse employment decision. For example, Minneapolis and Washington state recently adopted additional fair chance employment protections requiring covered employers to evaluate criminal history information in connection with employment decisions.

Under the federal Pregnant Workers Fairness Act (PWFA), employers may be required to provide reasonable accommodation related to an employee’s limitations arising from pregnancy, childbirth, or associated medical conditions.

Four pregnant warehouse workers filed a lawsuit in federal court against Amazon for violating the PWFA (Barclay et al. v. Amazon.com Services, LLC). The Barclay plaintiffs assert that Amazon’s actions are systemic and raise serious implications for pregnant workers across the company.

The Warehouse Workers’ Complaint Against Amazon. The Barclay plaintiffs allege that Amazon violated the PWFA in two ways. First, they argue that Amazon’s “Medical Documentation for Predictable Assessment Policy” violates the PWFA because the policy does not permit pregnant workers reasonable accommodations—such as water breaks—unless a worker provides a doctor’s note justifying such need for accommodation. Second, the Barclay plaintiffs argue that Amazon’s attendance policies violate the PWFA because they punish pregnant workers for certain absences and breaks protected under law. Specifically, Amazon employs two attendance policies: the Unpaid Time Policy (UPT) and the Time Off-Task Policy (TOT), both of which impose penalties for absences and breaks. For example, workers may accumulate unfavorable “time off task” points when they take protected absences or breaks. Under Amazon’s UPT and TOT, the accumulation of these “time off task” points may then be used to justify the termination of pregnant workers. According to the Barclay plaintiffs, pregnant employees are regularly forced to take unpaid medical leave, penalized for taking short breaks often approved by managers, and fired for exceeding the allowed amount of UPT “time off task” points.

The PWFA, which is enforced by the EEOC, expands upon two landmark pieces of antidiscrimination legislation: (1) Title VII of the Civil Rights Act of 1964—the protections of which were extended to pregnant workers with the passage of the Pregnancy Discrimination Act of 1978—and (2) the Americans with Disabilities Act of 1990 (ADA).

The PWFA requires that covered entities, such as employers, make reasonable accommodations for pregnancy, childbirth, lactation, or any related medical conditions and limitations, so long as doing so “does not create an undue hardship on the entity’s operations.” Covered entities are not allowed to take adverse action—such as termination, coercion, or intimidation—when a qualified employee requests or otherwise uses an accommodation protected under the PWFA.

Predictable assessments, as the name implies, exist in response to needs that predictably arise from an uncomplicated pregnancy, childbirth, or related medical conditions. Some of these needs include carrying drinking water, taking additional restroom breaks, sitting or standing as needed, and taking breaks to eat or drink as needed. Lactation, nursing, and pumping needs similarly qualify as pregnancy-related conditions that are to be expected and accounted for.

An employer risks violating the PWFA by requiring documentation to justify predictable assessments, which may also create an impermissible “unnecessary delay” in providing the accommodation.

As applicable to the Barclay lawsuit, predictable assessments are particularly important for warehouse workers given the physically demanding work that they are engaged in. As the Barclay plaintiffs explain, Amazon warehouse workers “rapidly code, pick, pack, sort, and organize items for delivery” in each of the 30 logistics facilities located in New York, which can include long standing hours, lifting heavy items, and climbing ladders.