Last week the EEOC issued two Informal Discussion Letters addressing employment practices or policies that might create liability under a disparate impact theory of discrimination. Since the discussion letters do not constitute official opinions or interpretations of the Commission, the significance of back-to-back letters on the same topic is not the content (the letters do not break any new legal ground or make any surprising pronouncements), but that it suggests the Commission might be interested in finding and bringing more disparate impact claims. The following is a brief summary of the discussion letters.
The first letter dated February 19, 2010, discusses whether a proposed qualification standard that Public Health Directors possess a master’s degree, without the possibility of substituting experience or other education, violates Title VII. The Attorney-Advisor of the Office of Legal Counsel noted that if the master’s requirement had a significant disparate effect on a protected group, it might be unlawful if the employer cannot justify that the requirement is "job related and consistent with business necessity" and there is no alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group."
The second letter dated March 9, 2010, discusses employers’ use of credit checks to screen job applicants. While acknowledging that the EEOC has no authority to enact legislation to prohibit employer credit checks, its authority does extend to circumstances where an employer’s use of credit information disproportionately excludes minority candidates and the employer was unable to show that the practice was needed to operate safely or efficiently. The Commission’s Assistant Legal Counsel also noted that in May 2007, an attorney who primarily represents class action plaintiffs against employers testified that "credit checks have not been shown to be a valid measure of job performance." Including a reference in the discussion letter to testimony opining that credit checks do not effectively predict job performance (and then posting the letter on the Commission’s website) suggests that some at the Commission may share a similar view about the use of credit checks to screen applicants.
While these Informal Discussion letters do not constitute a written opinion or interpretation of the EEOC they are instructive in that they highlight an issue that the EEOC is focusing at least some of its resources.