Certainty in Enforcement Act of 2014

The Equal Employment Opportunity Commission (EEOC) has, since 1965, been responsible for enforcing Federal laws against employment discrimination, but there are growing concerns about the enforcement and policy approach adopted by the EEOC, raising questions about whether the best interests of workers and employers are being served.

The EEOC may promulgate guidance under the Civil Rights Act of 1964, but that guidance does not have the force of law, and in some cases has been rejected by the courts.

In 2012, the EEOC promulgated enforcement guidance regarding the use of criminal background checks that put employers in the position of acting contrary to Federal, State, and local laws that require employers to conduct criminal background checks for certain positions, such as public safety officers, teachers, and daycare providers.

In EEOC v. Peoplemark, Inc., a case challenging Peoplemark’s use of criminal background checks in making employment decisions, the Court of Appeals for the Sixth Circuit in October 2013 affirmed an award of $751,942 against the EEOC for prevailing defendant Peoplemark’s attorney’s and expert fees.

In EEOC v. Kaplan Higher Education Corporation, a case challenging Kaplan’s use of credit reports in the hiring process, the Court of Appeals for the Sixth Circuit affirmed the district court’s decision granting summary judgment in favor of Kaplan and stated that the EEOC brought a case on the basis of a “homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself”.