The U.S. House of Representatives has passed an appropriations bill (H.R. 5326) that provides funding for several agencies including the Department of Justice, the Commerce Department, several science agencies, and the Equal Employment Opportunity Commission (EEOC).
The bill allocates $367 million in funding for the EEOC, but blocks implementation and enforcement of several key programs, including those that deal with age discrimination and the use of arrest and conviction records in preemployment screening.
Amendments to the bill prevent the implementation, administration, or enforcement of the EEOC’s final regulations on “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.” The regulations, which were released in March, clarify the circumstances under which an employer may successfully claim that an older employee was fired or demoted for reasonable factors other than age (RFOA).
The RFOA argument is determined on a case-by-case basis and the employer bears the burden of proof. The new rules provide some guidance on when an employer may successfully use the defense. For example, the rules note that courts will consider the extent to which the RFOA is related to the purpose of the business and whether the employer trained supervisors and managers on avoiding age discrimination.
H.R. 5326 would also prohibit funding to implement, administer, or enforce the new EEOC enforcement guidance on “Consideration of Arrest and Conviction Records in Employment Decisions.” The guidance urges that employers rely on conviction records rather than arrest records because a decision based on an arrest “is not job related and consistent with business necessity.” However, a company may base decisions on the underlying actions that brought about the arrest, if that conduct is related to the job on offer.
The guidance also notes that employers may face discrimination claims over the use of arrest and conviction records because these records disproportionately affect African-Americans and Hispanics. To avoid such claims, employers are encouraged to develop a targeted screening program. Such a program would consider the nature of the crime, the time that has passed since the incident, and the nature of the job duties in question. The company would also need to prove that it considered those excluded by arrest or conviction and found that these applicants would not be right for the job for reasons consistent with business necessity.
Amendments to H.R. 5326 would also prevent funding of lawsuits against state immigration laws and legal defenses to the Affordable Care Act.
The Senate appropriations bill to fund these same agencies (S. 2323) does not include these amendments. The bill has been approved by the Senate Appropriations Committee and is now pending before the Senate. Once the Senate bill has been approved it will be moved to a conference committee where the differences between it and the House bill will be reconciled.