I don't know if that is all it is. But I'm pretty sure that that is all that the law requires.
We are talking about Federal law here, not state law. Some states like CA have more restrictive regulations for how background checks can be used in the hiring process. But this is a Federal case in PA so it is Federal law not state law that is at question.
It sounds like it is just a big company not wanting to change how they do business because it will cost them more money. And potentially give more discretion to local managers which they may be loath to do.
I don't think that the current EEOC cares whether or not Sheetz is compliant with what Federal law currently requires. I think their goal here is to tighten the restrictions on what is considered acceptable use of background checks. The current administration hasn't been shy about that being one of their goals.
If that is the case then the Feds will lose this lawsuit.
One simply can't tighten up Federal regulations because a certain director of an agency wants to do so. They have to go through ordinary notice and comment rulemaking which is a defined process and takes a lot of time. Usually years unless it is an emergency action.
They might decide to start enforcing an existing regulation that the previous administration wasn't enforcing. But that is a different thing.
Actually the line of what constitutes "discrimination on the basis of sex, nationality, religion, etc" is a question that can be decided by the courts, which seems to be the goal here - to convince a court to rule that unnecessary use of background checks is not permissible if it results in a worser outcome for a protected class of applicants.
Just yesterday SCOTUS just modified the bar that must be reached for employer conduct to be considered employment discrimination. It didn't take notice, comment, or rulemaking nor was it an emergency action. Obviously it's not nearly as simple as the process for changing the Wikipedia definition of "Baptismal Regeneration" but since it is a matter of definition the effect of the law changes if the definitions are changed.
ken_sylvania wrote: ↑Thu Apr 18, 2024 8:46 pm
I don't think that the current EEOC cares whether or not Sheetz is compliant with what Federal law currently requires. I think their goal here is to tighten the restrictions on what is considered acceptable use of background checks. The current administration hasn't been shy about that being one of their goals.
If that is the case then the Feds will lose this lawsuit.
One simply can't tighten up Federal regulations because a certain director of an agency wants to do so. They have to go through ordinary notice and comment rulemaking which is a defined process and takes a lot of time. Usually years unless it is an emergency action.
They might decide to start enforcing an existing regulation that the previous administration wasn't enforcing. But that is a different thing.
Actually the line of what constitutes "discrimination on the basis of sex, nationality, religion, etc" is a question that can be decided by the courts, which seems to be the goal here - to convince a court to rule that unnecessary use of background checks is not permissible if it results in a worser outcome for a protected class of applicants.
Just yesterday SCOTUS just modified the bar that must be reached for employer conduct to be considered employment discrimination. It didn't take notice, comment, or rulemaking nor was it an emergency action. Obviously it's not nearly as simple as the process for changing the Wikipedia definition of "Baptismal Regeneration" but since it is a matter of definition the effect of the law changes if the definitions are changed.
Correction. It is a statute, not a regulation. The law in question is the Civil Rights Act of 1964. But it is up to the EEOC to write clarifying regulations if there is any ambiguity in the statute. And up to Congress to change it or clarify it if necessary.
Obviously the Supreme Court can do whatever it wants when clarifying or interpreting statutes and regulations. But the EEOC does not have that power. They do, however, have the power to write implementing regulations for all the statutes that they are tasked with enforcing. And yes, that process is a years-long administrative rulemaking process subject to lots of comment and legal review.
What happens if the government wins this case? I have no idea. Perhaps a fine that could be appealed. More likely my guess is that they settle and enter into a consent decree in which Sheetz agrees to change its hiring practices. And that will become a marker for other firms to comply with.
0 x
A fool can throw out more questions than a wise man can answer. -RZehr
Ken wrote: ↑Thu Apr 18, 2024 9:38 pm
What happens if the government wins this case? I have no idea. Perhaps a fine that could be appealed. More likely my guess is that they settle and enter into a consent decree in which Sheetz agrees to change its hiring practices. And that will become a marker for other firms to comply with.
If the government wins? Force Sheetz to hire some of the people they turned down because of their criminal records and to pay back wages and penalties.
And yes, if Sheetz settles or loses then the EEOC will have managed to set a de facto interpretation of the law without following the appropriate rule-making process.
Ken wrote: ↑Thu Apr 18, 2024 9:38 pm
What happens if the government wins this case? I have no idea. Perhaps a fine that could be appealed. More likely my guess is that they settle and enter into a consent decree in which Sheetz agrees to change its hiring practices. And that will become a marker for other firms to comply with.
If the government wins? Force Sheetz to hire some of the people they turned down because of their criminal records and to pay back wages and penalties.
And yes, if Sheetz settles or loses then the EEOC will have managed to set a de facto interpretation of the law without following the appropriate rule-making process.
If the government wins, it will be because they managed to convince a judge and possibly a jury that Sheetz is in actual violation of the letter of the law. And if Sheetz settles, they will be making a legal admission that they were acting in actual violation of the letter of the law.
The statute (the Civil Rights Act) is actually quite explicit. If it needs more interpretation, that is what the courts are for.
What I expect this is really about is that Sheetz doesn't want to give local store managers more discretion to make hiring decisions on their own, and would rather do it via computer algorithm from their HQ human resources office.
0 x
A fool can throw out more questions than a wise man can answer. -RZehr
Ken wrote: ↑Thu Apr 18, 2024 9:38 pm
What happens if the government wins this case? I have no idea. Perhaps a fine that could be appealed. More likely my guess is that they settle and enter into a consent decree in which Sheetz agrees to change its hiring practices. And that will become a marker for other firms to comply with.
If the government wins? Force Sheetz to hire some of the people they turned down because of their criminal records and to pay back wages and penalties.
And yes, if Sheetz settles or loses then the EEOC will have managed to set a de facto interpretation of the law without following the appropriate rule-making process.
If the government wins, it will be because they managed to convince a judge and possibly a jury that Sheetz is in actual violation of the letter of the law. And if Sheetz settles, they will be making a legal admission that they were acting in actual violation of the letter of the law.
Maybe. I would allow a high probability that if Sheetz settles they will probably do so without admitting any violation or wrongdoing.
I don't know how much actual experience you have with the court system, but I have seen enough to know that a large percentage of both criminal and civil settlements are made not because anyone did anything legally wrong, but because the accused party either can't afford the cost of the legal fees necessary to prove their innocence, or because (especially in civil cases) it is less expensive in dollars to settle rather than to prove one is not at fault. Everyone involved in the game knows it, too.
ken_sylvania wrote: ↑Thu Apr 18, 2024 8:46 pm
I don't think that the current EEOC cares whether or not Sheetz is compliant with what Federal law currently requires. I think their goal here is to tighten the restrictions on what is considered acceptable use of background checks. The current administration hasn't been shy about that being one of their goals.
If that is the case then the Feds will lose this lawsuit.
One simply can't tighten up Federal regulations because a certain director of an agency wants to do so. They have to go through ordinary notice and comment rulemaking which is a defined process and takes a lot of time. Usually years unless it is an emergency action.
They might decide to start enforcing an existing regulation that the previous administration wasn't enforcing. But that is a different thing.
Actually the line of what constitutes "discrimination on the basis of sex, nationality, religion, etc" is a question that can be decided by the courts, which seems to be the goal here - to convince a court to rule that unnecessary use of background checks is not permissible if it results in a worser outcome for a protected class of applicants.
Just yesterday SCOTUS just modified the bar that must be reached for employer conduct to be considered employment discrimination. It didn't take notice, comment, or rulemaking nor was it an emergency action. Obviously it's not nearly as simple as the process for changing the Wikipedia definition of "Baptismal Regeneration" but since it is a matter of definition the effect of the law changes if the definitions are changed.
Nope. What you have here is the federal government using disparate impact reasoning to “prove” there is discrimination. If a policy has a disproportionate impact on a favored group, it simply must be discriminatory. It is the kissing cousin of “implicit bias” as a cause of worse outcomes for black patients. The fact that many of them have uncontrolled hypertension and do not take their meds, it is still the providers “bias” that causes this.
We were getting some training mandates, and one of the many reasons I retired was to avoid this training.
If that is the case then the Feds will lose this lawsuit.
One simply can't tighten up Federal regulations because a certain director of an agency wants to do so. They have to go through ordinary notice and comment rulemaking which is a defined process and takes a lot of time. Usually years unless it is an emergency action.
They might decide to start enforcing an existing regulation that the previous administration wasn't enforcing. But that is a different thing.
Actually the line of what constitutes "discrimination on the basis of sex, nationality, religion, etc" is a question that can be decided by the courts, which seems to be the goal here - to convince a court to rule that unnecessary use of background checks is not permissible if it results in a worser outcome for a protected class of applicants.
Just yesterday SCOTUS just modified the bar that must be reached for employer conduct to be considered employment discrimination. It didn't take notice, comment, or rulemaking nor was it an emergency action. Obviously it's not nearly as simple as the process for changing the Wikipedia definition of "Baptismal Regeneration" but since it is a matter of definition the effect of the law changes if the definitions are changed.
Nope. What you have here is the federal government using disparate impact reasoning to “prove” there is discrimination. If a policy has a disproportionate impact on a favored group, it simply must be discriminatory. It is the kissing cousin of “implicit bias” as a cause of worse outcomes for black patients. The fact that many of them have uncontrolled hypertension and do not take their meds, it is still the providers “bias” that causes this.
You are both right and wrong here. You are correct in that the government did a disparate impact analysis. That is standard. Where you are incorrect is in the assertion that disparate impacts are by definition discriminatory. That is untrue. All an employer has to do is demonstrate that the standard which caused the disparate impact is necessary for the job for it to not be discriminatory.
For example, airline pilots must pass vision tests in order to fly commercial jetliners. Pilots must have 20/20 vision with our without correction. This standard clearly has a disparate impact on blind candidates for the job, and the blind are a protected class. Does that mean the airlines are illegally discriminating against the blind in their hiring practices? No. Because the airlines can easily show that 20/20 vision is necessary for piloting a commercial jetliner.
Another example. A state might impose a 40 mph minimum speed capacity on all vehicles that use the public roadways. They might do this for any number of legitimate reasons such as not wanting slow moving vehicles to block traffic. This standard would clearly have a disparate impact on the Amish since there are no horse-drawn Amish buggies that can cruise at 40 mph. Effectively the Amish would be banned from using public roads. Whether or not such a law would be discriminatory depends on whether the state can show that such a law is necessary and outweighs the rights of the Amish to also use the roadways.
In this case with Sheetz. The company merely needs to demonstrate that their particular use of criminal background checks as a computerized screening tool in the initial part of the job application process serves a necessary purpose that outweighs the rights of minority applicants to be considered for the job. If Sheetz can demonstrate that their method of candidate screening serves a necessary and legitimate purpose (as opposed to doing the background screening later in the hiring process after the candidate has had a chance to present their case) then they will win.
0 x
A fool can throw out more questions than a wise man can answer. -RZehr
ken_sylvania wrote: ↑Thu Apr 18, 2024 9:08 pm
Actually the line of what constitutes "discrimination on the basis of sex, nationality, religion, etc" is a question that can be decided by the courts, which seems to be the goal here - to convince a court to rule that unnecessary use of background checks is not permissible if it results in a worser outcome for a protected class of applicants.
Just yesterday SCOTUS just modified the bar that must be reached for employer conduct to be considered employment discrimination. It didn't take notice, comment, or rulemaking nor was it an emergency action. Obviously it's not nearly as simple as the process for changing the Wikipedia definition of "Baptismal Regeneration" but since it is a matter of definition the effect of the law changes if the definitions are changed.
Nope. What you have here is the federal government using disparate impact reasoning to “prove” there is discrimination. If a policy has a disproportionate impact on a favored group, it simply must be discriminatory. It is the kissing cousin of “implicit bias” as a cause of worse outcomes for black patients. The fact that many of them have uncontrolled hypertension and do not take their meds, it is still the providers “bias” that causes this.
You are both right and wrong here. You are correct in that the government did a disparate impact analysis. That is standard. Where you are incorrect is in the assertion that disparate impacts are by definition discriminatory. That is untrue. All an employer has to do is demonstrate that the standard which caused the disparate impact is necessary for the job for it to not be discriminatory.
For example, airline pilots must pass vision tests in order to fly commercial jetliners. Pilots must have 20/20 vision with our without correction. This standard clearly has a disparate impact on blind candidates for the job, and the blind are a protected class. Does that mean the airlines are illegally discriminating against the blind in their hiring practices? No. Because the airlines can easily show that 20/20 vision is necessary for piloting a commercial jetliner.
Another example. A state might impose a 40 mph minimum speed capacity on all vehicles that use the public roadways. They might do this for any number of legitimate reasons such as not wanting slow moving vehicles to block traffic. This standard would clearly have a disparate impact on the Amish since there are no horse-drawn Amish buggies that can cruise at 40 mph. Effectively the Amish would be banned from using public roads. Whether or not such a law would be discriminatory depends on whether the state can show that such a law is necessary and outweighs the rights of the Amish to also use the roadways.
In this case with Sheetz. The company merely needs to demonstrate that their particular use of criminal background checks as a computerized screening tool in the initial part of the job application process serves a necessary purpose that outweighs the rights of minority applicants to be considered for the job. If Sheetz can demonstrate that their method of candidate screening serves a necessary and legitimate purpose (as opposed to doing the background screening later in the hiring process after the candidate has had a chance to present their case) then they will win.
The feds will try to assert that disparate impact means that there must be discrimination or racial animus if the results adversely impacts a protected population. After all, all white people are racist, by definition. As I said, I would have been fired had I not retired, because I would have stood up and walked out of implicit bias training.
Nope. What you have here is the federal government using disparate impact reasoning to “prove” there is discrimination. If a policy has a disproportionate impact on a favored group, it simply must be discriminatory. It is the kissing cousin of “implicit bias” as a cause of worse outcomes for black patients. The fact that many of them have uncontrolled hypertension and do not take their meds, it is still the providers “bias” that causes this.
You are both right and wrong here. You are correct in that the government did a disparate impact analysis. That is standard. Where you are incorrect is in the assertion that disparate impacts are by definition discriminatory. That is untrue. All an employer has to do is demonstrate that the standard which caused the disparate impact is necessary for the job for it to not be discriminatory.
For example, airline pilots must pass vision tests in order to fly commercial jetliners. Pilots must have 20/20 vision with our without correction. This standard clearly has a disparate impact on blind candidates for the job, and the blind are a protected class. Does that mean the airlines are illegally discriminating against the blind in their hiring practices? No. Because the airlines can easily show that 20/20 vision is necessary for piloting a commercial jetliner.
Another example. A state might impose a 40 mph minimum speed capacity on all vehicles that use the public roadways. They might do this for any number of legitimate reasons such as not wanting slow moving vehicles to block traffic. This standard would clearly have a disparate impact on the Amish since there are no horse-drawn Amish buggies that can cruise at 40 mph. Effectively the Amish would be banned from using public roads. Whether or not such a law would be discriminatory depends on whether the state can show that such a law is necessary and outweighs the rights of the Amish to also use the roadways.
In this case with Sheetz. The company merely needs to demonstrate that their particular use of criminal background checks as a computerized screening tool in the initial part of the job application process serves a necessary purpose that outweighs the rights of minority applicants to be considered for the job. If Sheetz can demonstrate that their method of candidate screening serves a necessary and legitimate purpose (as opposed to doing the background screening later in the hiring process after the candidate has had a chance to present their case) then they will win.
The feds will try to assert that disparate impact means that there must be discrimination or racial animus if the results adversely impacts a protected population. After all, all white people are racist, by definition. As I said, I would have been fired had I not retired, because I would have stood up and walked out of implicit bias training.
I think they've moved on from arguing the racial animus bit - the latest and greatest theory is that even if the employer has no discriminatory intent or racial animus, if a policy results in a disproportionately negative impact on a protected class then it is discriminatory.
One of the reasons for moving to algorithmic hiring systems was to help to prevent conscious or unconscious racial bias from impacting the hiring process. So now, lets force a human review of everything so that we can make this about racial bias in human decision making again....
